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The  National  Social  Science  Series 

Edited  by  Frank  L.   McVey,  Ph.D.,  LL.D., 
President    of    the    University    of    Kentucky 

Now  Ready;      Each,  One  Dollar 

AMERICAN  CITY,  THE.  Henry  C.  Wright,  First 
Deputy  Commissioner,  Department  of  Public  Charities, 
New  York  City. 

AMERICAN  TRADE  UNIONISM.  George  M.  Janes, 
Professor  of  Economics,  Washington  and  Jefferson 
College. 

CAUSE  AND  CURE  OF  CRIME,  THE.  Charles  R. 
Henderson,  late  Professor  of  Sociology,  The  University 
of  Chicago. 

COST  OF  LIVING,  THE.  W.  E.  Clark,  Professor  of 
Political  Science,  The  College  of  the  City  of  New  York. 

FAMILY  AND  SOCIETY,  THE.  John  M.  Gh^lette, 
Professor  of  Sociology,  The  University  of  North  Dakota. 

GOVERNMENT  FINANCE  IN  THE  UNITED 
STATES.  Carl  C.  Plehn,  Professor  of  Finance,  The 
University  of  California. 

HOUSING  AND  THE  HOUSING  PROBLEM.  Carol 
Aronovici,  Lecturer  on  Social  Problems,  The  University 
of  Minnesota. 

KANSAS  COURT  OF  INDUSTRIAL  RELATIONS, 
THE.  John  Hugh  Bowers,  Professor  of  Social 
Sciences,  State  Teachers  Normal  College,  Pittsburg, 
Kansas. 

MAKING  OF  CITIZENS,  THE.  J.  G.  de  Roulhac 
Hamilton,  Kenan  Professor  of  History  and  Govern- 
ment, University  of  North  Carolina,  and  Edgar  W. 
Knight,  Professor  of  Rural  Education,  University  of 
North  Carolina. 

MEANING  OF  CHILD  LABOR,  THE.  Raymond  G. 
Fuller. 

MONEY.    William  A.  Scott. 

MONROE  DOCTRINE  AND  THE  GREAT  WAR, 
THE.  Arnold  Bennett  Hall,  Associate  Professor  of 
Political  Science,  The  University  of  Wisconsin. 


NATIONAL  EVOLUTION.  George  R.  Davies,  Assistant 
Professor  in  the  Department  of  Economics,  Princeton 
University. 

PROPERTY  AND  SOCIETY.  A.  A.  Bruce,  Associate 
Justice  Supreme  Court,  North  Dakota. 

PSYCHOLOGY  OF  CITIZENSHIP,  THE.  Arland  D. 
Weeks,  Professor  of  Education,  North  Dakota  Agricul- 
tural College. 

RURAL  PROBLEMS  IN  THE  UNITED  STATES. 
James  E.  Boyle,  Extension  Professor  of  Rural  Economy, 
College  of  Agriculture,  Cornell  University. 

SOCIAL  ANTAGONISMS.    Arland  D.  Weeks. 

SOCIAL  ENVIRONMENT.    George  R.  Davis. 

SOCIAL  INSURANCE  IN  THE  UNITED  STATES. 
Gurdon  Ransom  Miller,  Professor  of  Sociology  and 
Economics,  Colorado  State  Teachers'  College. 

SOCIOLOGY.     John  M.  Gillette. 

SOME  PROBLEMS  OF  RECONSTRUCTION.  Annie 
Marion  MacLean,  Extension  Assistant  Professor  of 
Sociology,  The  University  of  Chicago. 

STATE  AND  GOVERNMENT,  THE.  J.  S.  Young,  Pro- 
fessor of  Political  Science,  The  University  of  Minnesota. 

STATISTICS.  William  B.  Bailey,  Professor  of  Practical 
Philanthropy,  Yale  University,  and  John  Cummings,  Ex- 
pert Special  Agent,  Bureau  of  the  Census. 

SYMPATHY  AND  SYSTEM  IN  GIVING.  Elwood 
Street,  Director  of  Welfare  League,  Louisville,  and  Sec- 
retary American  Association  for  Community  Organiza- 
tion. 

TAXATION.  C.  B.  Fillebrown,  late  President  Massa- 
chusetts Single  Tax  League. 

TRUSTS  AND  COMPETITION.  John  F.  Crowell, 
Associate  Editor  of  the  Wall  Street  Journal. 

WOMEN  WORKERS  AND  SOCIETY.  Annie  Marion 
MacLean. 


The  Kansas  Court 

of 

Industrial  Relations 

The  Philosophy  and  History  of  the  Court 

By 

John  Hugh  Bowers,  Ph.  D.,  LL.  B. 

Professor  of  Social  Sciences  at  the  State  Teachers  Nor- 
mal College  at  Pittsburg,  Kansas.     Author 
of  Mistakes  in  College  Teaching,  Etc. 


CHICAGO 

A.   C.   McCLURG   &  CO. 

1922 

0  iW  4/  i.  1 


Copyright 
A.   C.   McClurg  &  Co. 
1922 


Published  November,  1922 


Printed  in  the   United  States  of  America 


550  4 

KzBL 


EDITOR'S  PREFACE 

THE  Kansas  Industrial  Court  has  been  the 
subject  of  praise  and  vituperation.     On 
t  one  side  it  is  declared  to  be  the  solution  of 
^strike  difficulties;  on  the  other  it  is  regarded 
as  a  system  of  slavery.    It  does,  however,  take 
into  consideration  the  rights  of  the  public  and 
it  is  high  time.     Professor  Bowers  is  frankly 
^  a  protagonist  of  the  Court  and  in  his  book 
argues  strongly  for  its  provisions.     The  book 
containing  his  views  are  offered  as  a  timely 
i^discussion  of  an  important  contribution  to  the 
3  legal  machinery  of  the  modern  state. 

F.  L.  M. 


AUTHOR'S   PREFACE 

THE  Kansas  Court  of  Industrial  Relations 
is  a  Court  in  the  sense  that  it  is  a  tribunal 
established  by  the  legislature  of  the  state  for 
the  administration  of  industrial  justice.  The 
Court  has  now  been  organized  less  than  two 
years  and  has  adjudicated  thirty-three  indus- 
trial controversies.  Thirty-two  of  these  thirty- 
three  controversies  were  initiated  by  organized 
labor  or  by  unorganized  groups  of  laborers. 
One  case  has  been  brought  by  employers.  The 
Amalgamated  Association  of  Street  and 
Electric  Railway  Workers,  the  International 
Brotherhood  of  Electrical  Workers,  the  Inter- 
national Brotherhood  of  Stationary  Firemen 
and  Oilers,  the  Brotherhood  of  Railway  Car- 
men of  America,  and  other  labor  organizations 
affiliated  with  the  American  Federation  of 
Labor,  have  filed  cases  for  local  unions  in 
Kansas.  In  many  of  these  cases  the  national 
representatives  have  appeared  in  court  and 
testified  or  assisted  in  the  presentation  of  the 
evidence.  One  case  was  brought  by  a  group 
of  members  of  various  local  unions  of  the 
United  Mine  Workers  of  America. 


Author's  Preface 


In  thirty-two  of  the  thirty-three  cases  ad- 
judicated, the  orders  of  the  Industrial  Court 
have  been  complied  with  by  both  parties  to  the 
controversy.  In  the  one  exception,  the  case 
of  the  Wolff  Packing  Company,  the  company 
refused  to  comply  with  the  order  of  the  In- 
dustrial Court  and  the  case  was  appealed  to 
the  Supreme  Court  of  the  State  of  Kansas, 
which  appeal  is  provided  for  under  Sec.  12 
of  the  Act  creating  the  Industrial  Court.  The 
Supreme  Court  of  Kansas  has  already  decided 
the  points  of  law  in  favor  of  the  Industrial 
Court  Act,  and  the  only  remaining  feature  of 
the  case  is  the  reasonableness  of  the  award 
made  by  the  Industrial  Court  which  will  be 
decided  quite  soon,  because,  in  the  Supreme 
Court,  appeals  from  the  Industrial  Court  take 
precedence  over  other  civil  cases. 

The  widespread  interest  in  the  Kansas  Court 
of  Industrial  Relations  has  been  intensified  by 
President  Harding's  Annual  Message  to  Con- 
gress, December,  1921,  in  which  he  recom- 
mends a  "  Judicial  or  quasi-judicial  tribunal  for 
the  consideration  and  determination  of  all  dis- 
putes which  menace  the  public  welfare."  The 
President  goes  beyond  "arbitration"  and  uses 
the  words  "judicial  determination"  in  con- 
troversies between  labor  and  capital. 


Author's  Preface 


More  than  to  any  other  one  man,  the  honor 
of  having  established  the  Industrial  Court  be- 
longs to  Governor  Henry  J.  Allen  of  Kansas 
who  modestly  says :  "  The  Court  is  the  direct 
result  of  public  sentiment  aroused  by  the  Kan- 
sas coal  strike."  The  coal  strike  in  Kansas 
in  the  Fall  of  19 19  was  not  very  different 
from  what  it  was  in  other  states  at  that  same 
time,  with  the  possible  exception  that  in  Kan- 
sas the  miner's  leader  was  obdurate.  In  Kan- 
sas as  elsewhere  the  question  at  issue  was: 
When  there  is  a  strike  in  an  essential  industry 
which  stops  the  supply  of  a  vital  necessity 
of  life,  and  the  public  is  threatened  with  suf- 
fering and  even  with  death;  does  the  public 
have  a  right  to  see  that  production  is  resumed, 
and  if  so,  by  what  methods  shall  the  public 
accomplish  its  protection? 

The  writer  contends :  that  the  state  has  a 
right  to  protect  the  public  and  to  see  that 
essential  industries  continue  functioning  in  a 
regular  way;  that  the  state  government  is  the 
best  agency  for  the  protection  of  the  public; 
and  that  the  best  instrumentality  or  tribunal 
thus  far  devised  for  such  service  is  a  special 
court  such  as  the  Kansas  Court  of  Industrial 
Relations. 

In  presenting  the  philosophical  part  of  this 


Author's  Preface 


thesis — that  is  the  part  that  endeavors  to  ex- 
plain the  duty  of  the  state  to  protect  the  people 
— and  in  narrating  the  story  of  how  the  Court 
was  made,  and  the  work  of  the  Court,  the 
writer  has  endeavored  both  to  collect  and  to 
give  fairly  all  the  arguments  against  the  Court 
along  with  the  arguments  for  the  Court. 

One  of  the  latest  notable  additions  to  the 
ranks  of  those  who  criticize  the  Court  says 
that  it  is  weak  and  can  do  nothing.  This 
objection  is  well  answered  in  the  abundance 
of  good  work  that  the  Court  has  already  done 
as  shown  by  its  records  and  by  the  press  of 
the  state.  Another  critic  talks  at  length  about 
the  many  objectionable  things  that  the  Court 
might  do,  clothed  as  it  is  with  such  unusual 
powers.  These  two  new  critics  contradict  one 
another;  and  they  cannot  both  be  right.  The 
reply  to  the  latter  is  that  other  necessary 
branches  of  our  government  have  power  to 
do  unusual  and  objectionable  things  which 
they  never  do.  A  highly  civilized  state  needs 
many  public  servants  who  have  power  to  do 
harm  which  they  never  do;  and  we  cannot 
dispense  with  the  services  of  the  functionary 
because  of  the  danger  of  maladministration. 
All  judges  have  power  to  do  great  wrong  but 
they   are    seldom   accused    of    misusing   that 


Author's  Preface 


power.  Civilization  demands  such  a  tribunal 
as  the  Industrial  Court.  It  is  the  task  of 
patriotic  citizens  to  secure  good  men  for  that 
service. 

For  many  years  the  writer  has  been  a 
student  and  teacher  of  the  economic  and  legal 
phases  of  industrial  problems,  and  has  been  a 
resident  of  Pittsburg,  Kansas,  the  center  of 
the  field  of  the  controversy,  during  the  entire 
time  of  the  conflict  out  of  which  grew  the 
Industrial  Court;  has  been  personally  ac- 
quainted with  the  significant  individuals  con- 
cerned and  has  had  first  hand  information 
concerning  the  making  of  the  Court  and  its 
history.  The  writer  is  indebted  to  Governor 
Allen  for  much  of  the  materials  consulted,  and 
to  Judge  W.  L.  Huggins,  the  Presiding  Judge 
of  the  Court,  for  the  records  of  the  Court. 

The  object  has  been  to  furnish,  within  the 
space  of  a  small  voluine,  the  information  and 
argument  that  the  average  reader  would  want 
concerning  the  Industrial  Court,  refute  certain 
misrepresentations  that  have  been  circulated, 
and  add,  be  it  ever  so  little,  to  the  enlighten- 
ment which  it  is  hoped  will  lead  to  the  es- 
tablishment of  similar  tribunals  by  other  states 
and  by  the  Federal  Government. 

J.  H.  B. 


CONTENTS 

CHAPTER  PAGE 

I     The  Duty  of  the  State  and  the  Indus- 
trial Court    I 

II     The  Coal  Strike   28 

III  The  Making  of  the  Industrial  Court. .     39 

IV  The  Court  at  Work 67 

V    The  Court  Approved    by   the    People 

of  Kansas 95 

VI     The  Right  of  the  State  to  Adjudicate 

Industrial  Disputes   loi 

VII     The  Proposal  to  Establish  a  Federal 

Industrial  Court I2i 


THE  NATIONAL  SOCIAL  SCIENCE  SERI 


The  purpose  of  this  series  is  to  furnish  for  hi 

men    and     women    a     brief     hut    essentially 

sane  and  sound  discussion  of  present-day 

questions.      The    authors    have    heen 

chosen  with  care  from  men  who 

are  in  first-hand  contact  with 

the  materials,   and  who 

will    hring     to     the 

reader  the  newest 

phases  of  the 

suhject. 


THE   KANSAS    COURT   OF 
INDUSTRIAL    RELATIONS 


CHAPTER  I 

THE  DUTY  Of*  THE  STATE  AND  THE  INDUSTRIAL 
COURT 

THE  government  of  the  state  must  protect 
all  the  citizens  of  the  state  and  secure 
justice  for  them.  It  cannot  permit  organized 
groups  of  its  citizens  to  enrich  themselves  at 
the  expense  of  other  citizens  without  suffering 
from  this  injustice.  While  to  administer  per- 
fect justice  at  all  times  and  to  all  persons  is 
obviously  impossible,  the  state  which  permits 
any  injustice  which  it  might  prevent  is  to  that 
extent  failing  in  its  duties.  So  long  as  men 
are  imperfect  some  degree  of  injustice  will  be 
practiced  among  us,  but  the  state  that  permits 
injustice  to  become  intolerable  will  be  de- 
stroyed. When  the  people  of  a  state  attempt 
to  govern  themselves  they  are  all  under  obli- 
gation to  help  make  that  state  as  efficient  as 
possible  in  securing  justice  for  all  persons. 
Good  citizens  will  not  witness  injustice  with- 
out protest. 

It  is  easy  for  the  organized  to  exploit  the 
unorganized.  In  the  past  the  few  greedy 
strong  have  organized  and  exploited  the  many 


The  Kansas  Court 


who  were  unorganized.  Now  nearly  all  classes 
organize;  some  for  selfish  purposes,  some  for 
unselfish  purposes,  and  some  for  self-defense. 
Some  of  these  organizations  have  conflicting 
Interests,  such  as  capital  and  labor,  and  they 
fight  one  another.  This  conflict  the  state  must, 
prevent  as  a  protection  to  its  people. 

Just  as  a  well-governed  army  will  not  allow 
its  different  units  to  injure  one  another  in  any 
sort  of  conflict;  so  a  well-governed  state  will 
not  allow  either  its  soldiers  or  its  citizens  to 
kill  or  injure  one  another  in  any  sort  of  com- 
bat. To  waste  capital,  to  waste  the  time  of 
workers,  and  to  waste  wealth  is  an  injury  to 
the  state  which  the  state  should  not  permit. 
Dueling  by  private  agreement  was  long  ago 
forbidden  by  the  state;  and  the  modern  indus- 
trial conflict  which  wastes  time  and  wealth 
and  causes  useless  suffering  and  injustice  must 
be  prevented. 

When  the  owners  of  the  railroads  refused 
the  demands  of  the  four  brotherhoods  and  the 
latter  threatened  to  tie  up  all  the  railroads  in 
the  country,  they  threatened  to  place  in  peril 
the  lives  of  millions  living  in  our  cities.  And 
when  the  coal  miners  struck  they  imperiled  the 
lives  of  millions.  However,  these  labor  organ- 
izations may  not  have  been  blameworthy  for 


Duty  of  State  and  Court 


threatening  to  strike  or  for  striking,  because, 
if  they  merited  an  increase  in  wages,  and  had 
exhausted  all  other  means  of  securing  consid- 
eration, the  strike  was  their  only  effective 
weapon.  It  is  not  the  purpose  here,  to  say 
who  was  to  blame.  At  that  time  no  state  had 
yet  provided  any  adequate  tribunal  before 
which  their  case  could  be  heard  and  adjudi- 
cated. In  the  realm  of  law  and  government 
men  are  conservative  and  do  not  provide  new 
institutions  until  such  are  necessary. 

It  is  the  purpose  of  this  thesis  to  show  that 
our  industrial  life  has  evolved  a  complex  con- 
dition in  which  there  is  need  for  a  tribunal  to 
adjudicate  industrial  disputes;  that  interven- 
tion by  state  authority  is  the  duty  of  the  state 
when  these  industrial  conflicts  threaten  the 
welfare  of  large  numbers  of  citizens;  that 
when  other  means  of  settlement  fail  the  state 
is  justified  in  final  adjudication  of  disputes 
that  affect  the  welfare  of  the  state;  and  par- 
ticularly to  study  the  merits  of  the  Kansas 
Court  of  Industrial  Relations  as  a  tribunal  for 
such  adjudication. 

This  modern  industrial  situation  has  come 
about  gradually  but  in  recent  decades  rapidly. 
When  in  the  early  days  each  family  formed  an 
economic  unit  living  largely  within  itself,  in- 


The  Kansas   Court 


dependent  of  outside  influences,  producing 
nearly  all  that  it  consumed  and  consuming 
nearly  all  that  it  produced,  there  was  no  need 
felt  of  an  Industrial  Court.  Then  about  the 
worst  form  of  waste  was  war  and  the  chief 
form  of  oppression  was  unjust  taxation.  Fool- 
ish kings,  unjust  rulers  and  unnecessary  wars 
were  among  the  worst  enemies  of  the  common 
man.  To  escape  some  of  these  dreaded 
enemies  man  threw  off  the  rule  of  inherited 
kings  and  substituted  the  rule  of  elected  poli- 
ticians. These  elected  politicians  have  not 
always  been  wise  or  just,  because  many  who 
vote  are  not  wise;  nevertheless  we  prefer  the 
elected  ruler. 

Notwithstanding  all  the  failures  of  repub- 
lican forms  of  government  they  are  preferable 
to  oligarchies.  We  are  committed  to  the  rule 
of  the  majority  and  will  not  tolerate  a  return 
to  the  rule  of  the  few.  In  recent  decades  we 
have  often  found  that  the  selfish  few  had  al- 
together too  much  influence  in  our  govern- 
ment. Also  the  selfish  few,  when  organized, 
have  had  too  much  economic  power.  The  gov- 
ernment recognized  this  fact  when  it  began  to 
enact  anti-trust  laws  and  similar  measures  in 
the  endeavor  to  curb  the  growing  power  of 
capitalistic  organizations. 


Duty  of  State  and  Court 


For  two  or  three  decades  we  have  witnessed 
a  constant  struggle  between  the  closely  organ- 
ized and  powerful  few  on  the  one  hand  and  the 
loosely  organized  many  on  the  other  hand. 
For  a  time  men  only  feared  the  evil  work  of 
the  greedy  few  who  held  so  much  power  both 
economic  and  political.  Recently  we  have 
learned  that  large  numbers  may  also  organize 
effectively,  and  in  seeking  the  interests  of 
those  within  the  organization,  may  menace  all 
who  are  not  so  organized.  We  can  also  fore- 
see that  if  all  classes  are  forced  to  organize  in 
self  defense,  we  shall  have  an  endless  and 
wasteful  war  of  classes,  with  no  power  but 
government  to  intervene  and  to  adjudicate 
the  causes  of  contention. 

We  do  not  want  government  unduly  influ- 
enced by  any  selfish  class  organization.  We 
want  government  by  the  majority,  with  the 
understanding  that  the  majority  must  be  just 
in  dealing  with  the  minority.  We  have  seen 
that  the  majority  can  be  unjust  in  its  rel^ion 
to  the  minority;  as  when  the  majority  party 
in  power  taxes  the  minority  party  for  a  por- 
tion of  the  campaign  expenses  of  the  ma- 
jority and  reimburses  its  campaign  contribu- 
tors from  the  public  funds  by  means  of  graft 
or  unjust  patronage  to  partisans. 


The  Kansas  Court 


If  we  could  in  any  way  at  all  secure  a  stable 
government  by  those  of  the  minority  who  are 
most  wise  and  most  unselfish,  and  then  be  sure 
of  keeping  those  few  wise  and  benign  ones  in 
power,  such  a  government  would  be  better  than 
the  rule  of  the  majority  in  its  immediate  re- 
sults; but  we  have  no  way  of  insuring  the  se- 
lection of  the  most  wise  and  most  public 
spirited  minority.  We  must  trust  to  govern- 
ment by  the  majority,  and  depend  upon 
educating  the  majority  to  govern  themselves 
and  others  wisely  and  justly  so  that  they  will 
not  rob  the  minority. 

Now  the  majority  must  govern  through 
their  chosen  representatives  and  a  responsible 
executive.  Here  again  both  in  determining  the 
results  of  an  election  and  in  bringing  pressure 
to  bear  upon  those  who  have  been  chosen  to 
office,  individuals  who  are  organized  have  a 
great  advantage.  Economic  organizations 
have  shown  a  strong  tendency  to  control  gov- 
ernment in  their  own  interests.  This  must  not 
be  permitted  to  work  injustice  to  the  unor- 
ganized. Government  by  an  economic  unit 
must  not  be  substituted  for  government  by  the 
majority.  Economic  conflicts  must  not  be  per- 
jnitted  to  waste  the  wealth  of  the  state  or  work 
injustice  to  any  class  of  citizens.    To  restrain 


Duty  of  State  and  Court 


such  economic  units  and  settle  such  disputes 
we  need  a  new  tribunal,  with  power  to  ad- 
judicate  differences   between   economic   units 
just  as  the  state  has  adjusted  differences  be- 
tween individuals  in  the  past.     The  right  qf_ 
the  state  to  investigate  and  adjudicate,  to  sut. 
pervise  and  control  will  not  be  questioned  by 
those  who  understand  the  nature  of  the  state, 
and  the  categorical  proposition  that  the  state 
must  be  supreme  in  all  things  that  are  neces- 
sary for  the  protection  of  the  people  and  the 
administration  of  justice. 

To  students  of  law  and  government  it  is 
not  necessary  to  argue  for  the  supremacy  of 
the  state  or  the  right  of  the  state  to  control 
individual  conduct  in  the  interest  of  society. 
They  know  that  the  sovereignty  of  the  state 
is  axiomatic ;  that  the  state  cannot  exist  on  any 
other  theory. 

However,  among  those  few  radical  labor 
leaders  and  a  few  employers  who  at  the  present 
time  are  opposing  the  Industrial  Court  here  in 
eastern  Kansas,  we  hear  loud  declarations  that 
the  state  has  no  right  to  prevent  strikes,  in- 
vestigate the  terms  of  a  private  contract,  regu- 
late wages,  fix  prices,  supervise  industry  or 
forbid  the  cessation  of  production.  They  for- 
get that  the  state  may  find  it  absolutely  neces- 


8  The  Kansas   Court 

sary  to  do  any  or  all  of  these  things  to  save  its 
citizens  from  gross  injustice  or  even  from 
death  itself;  and  also  that  it  may  become  neces- 
sary for  the  state  to  do  these  things  to  prevent 
anarchy  from  destroying  the  state.  Such  in- 
dividuals are  like  a  certain  child,  who  having 
heard  much  about  what  God  forbids  and  about 
what  the  policeman  forbids,  remarked :  "  What 
a  good  time  we  could  have  if  it  were  not  for 
God  and  the  policeman."  And  as  this  child 
forgot  the  benefits  of  God  and  the  policeman, 
so  these  individuals  forget  the  benefits  of  the 
^  state.  They  forget  that  if  the  state  is  to  per- 
form its  function  of  protection  it  must  have 
power;  and  that  if  they  destroy  the  state  there 
will  then  be  no  protection. 

For  the  benefit  of  such  as  these  we  need  to 
teach  the  true  conception  of  the  state  and  of 
government. 

At  the  foundation  of  society  we  find  two 
-'ideas:  the  individuality  of  man  and  the  or- 
ganic unity  of  the  race;  and  in  all  our  think- 
ing on  political,  economic  or  social  problems 
we  must  not  lose  sight  of  either  one  of  these 
ideas.  Man  is  both  an  individual  and  a  mem- 
ber of  society.  He  is  both  an  individual  hav- 
ing the  rights  of  an  individual  and  a  member 
of  a  living  brotherhood  having  the  duties  of  a 


Duty  of  State  and  Court 


member  of  the  brotherhood  —  not  simply  a 
narrow  class  or  occupational  brotherhood  but  a 
broad  state-wide  brotherhood. 

Each  individual  must  regard  himself  as  a 
member  of  a  brotherhood  which  shall  include 
all  the  citizens  of  the  state,  and  hold  his  own 
interests  as  subordinate  to  the  welfare  of  that 
brotherhood.  The  political  expression  of  that 
brotherhood  is  government.  A  true  conception  . 
of  government  recognizes  the  individual  and 
aims  to  give  the  fullest  opportunity  for  indi- 
vidual freedom  consistent  with  the  common 
welfare.  The  individual  must  have  such  rights 
as  will  enable  him  to  exercise  his  powers  both 
for  wise  service  and  for  ethical  enjoyment; 
but  the  individual  can  have  no  rights  that  con- 
flict with  the  welfare  of  the  larger  brother- 
hood. When  the  interests  of  the  individual" 
conflict  with  the  interests  of  the  brotherhood 
both  are  to  be  duly  considered  in  the  final  ad- 
justment. While  the  well-being  of  each  indi- 
vidual is  important  the  well-being  of  the  whole 
brotherhood  is  more  important.  The  welfare^ 
of  one  is  subordinate  to  the  welfare  of  many. 
While  the  individual  may  not  be  ruthlessly 
taken  for  fuel  to  warm  the  brotherhood ;  never- 
theless if  the  life  of  the  brotherhood  is  in  peril 
it  may  be  rightly  saved  by  the  sacrifice  of  the 


lo  The  Kansas   Court 

individual.  When  a  sacrifice  is  necessary  it  is 
highly  desirable  that  such  sacrifice  should  be 
made  voluntarily.  Hov\^ever,  if  volunteers  are 
not  forthcoming  to  save  the  state  it  may  ex- 
ercise its  sovereign  power  and  draft  those  who 
are  to  make  the  sacrifice.  The  few  are  sub- 
ordinate to  the  many  but  the  many  are  under 
obligation  to  deal  justly  with  the  few.  The 
welfare  of  all  is  to  be  considered  at  all  times. 

There  is  no  such  thing  as  a  man  without  a 
country.  Whatever  hurts  one  hurts  all  to  some 
extent;  and  whatever  benefits  one  benefits  all 
to  some  extent.  The  man  who  harms  the 
public,  or  robs  the  public,  or  exploits  his  fel- 
low-men or  oppresses  his  subordinates,  also 
hurts  himself  in  that  selfsame  act.  The  man 
who  serves  his  fellow-men  also  benefits  him- 
self. The  state  is  the  political  expression  of 
the  brotherhood  in  a  certain  territory.  Gov- 
ernment is  the  institution  formed  by  the  state 
for  its  protection  —  that  is,  for  the  protection 
of  all  its  members. 

A  man  is  born  into  a  family  and  in  conse- 
quence has  certain  duties  toward  that  family. 
He  has  no  choice  in  this  matter  and  though  he 
may  ignore  these  obligations  and  not  perform 
them  they  remain  his  obligations  just  the  same. 
So  a  man  is  born  into  a  state  with  obligations 


Duty  of  State  and  Court  ii 

as  a  citizen  of  the  state.  He  has  no  choice  in 
this  matter.  He  may  perform  freely  his  ob- 
ligations of  citizenship,  or  he  may  try  to 
ignore  them,  nevertheless  they  are  binding 
upon  him  all  the  while.  A  man  may  not  wish 
to  be  regarded  as  a  brother  to  his  fellow-man 
but  the  obligation  of  brotherhood  is  not  thus 
escaped. 

A  perfect  state  would  be  a  perfect  brother- 
hood. We  have  no  perfect  state  today.  A 
perfect  state  would  administer  perfect  justice; 
but  such  is  impossible  at  the  present  time. 
Nevertheless  we  are  under  obligation  to  ap- 
proach that  ideal  as  nearly  as  we  can,  and  each 
individual  is  under  obligation  to  do  his  part  in 
the  common  endeavor  to  make  the  state  as 
good  as  possible. 

It  is  only  by  regarding  himself  as  in  some 
sense  a  brother  to  his  fellow-man  that  an  in- 
dividual can  understand  his  right  relations  and 
perform  his  ethical  obligations  to  his  fellow- 
man;  and  it  is  only  by  regarding  the  state  as 
a  large  brotherhood  that  we  can  get  the  right 
understanding  of  the  functions  of  the  state  and 
wisely  play  our  part  as  citizens  of  the  state. 
This  understanding  of  the  state  leads  to  peace, 
harmony,  sympathy,  community  of  interest, 
common  endeavor,  and  happiness.     Any  other 


12  The  Kansas   Court 

conception  of  the  state  different  from  this 
leads  to  rivalry,  destructive  competition,  con- 
flict of  interests,  class  struggle,  strife,  waste, 
and  ultimately  to  anarchy.  To  be  a  brother  in 
a  brotherhood  is  the  only  way  of  peace.  Just 
in  proportion  as  men  act  like  brothers  we  have 
peace,  prosperity  and  progress;  while  in  pro- 
portion as  men  regard  one  another  as  com- 
petitors we  have  strife  and  waste. 

The  state  as  the  organization  of  the  brother- 
hood must  be  supreme  in  its  control  of  all 
within  the  brotherhood.  If  an  organization 
of  men  within  the  state  assert  that  they  are 
superior  to  the  state  they  have  virtually  de- 
clared war  on  the  state.  If  they  refuse  to  obey 
the  state  they  threaten  the  very  life  of  the  state 
which  protects  them.  They  open  the  way  for 
complete  disintegration. 

The  state  cannot  surrender  its  sovereignty  to 
a  class  within  the  state.  For  the  state  will 
not  be  able  to  accomplish  the  functions  of  the 
state  unless  it  has  complete  control  over  all 
the  lives  and  property  within  its  jurisdiction. 
*Then  the  essential  attribute  of  the  state  is 
sovereignty.  There  is  no  limit  to  the  sov- 
ereignty of  the  state.  If  such  were  possible, 
the  individual  or  group  of  individuals  who  set 
the  limits  to  the  state  would  themselves  be 


Duty  of  State  and  Court  13 

greater  than  the  state  and  the  state  would  cease 
to  exist,  having  been  annihilated  by  this 
greater  power.  The  state  must  have  complete 
and  unlimited  power  over  all  property  and  per- 
sons in  order  that  it  may  be  adequate  to  the 
task  of  protecting  all  property  and  persons  and 
administering  justice  among  all  persons. 

Every  state  by  its  very  nature  has  unlimited 
and  undivided  power  over  every  individual  sub- 
ject within  its  jurisdiction,  over  every  institu- 
tion that  its  subjects  may  establish  within  its 
territory,  and  over  every  commodity  that  exists 
within  that  territory. 

Some  say  that  this  is  a  harsh  doctrine  and 
they  would  like  to  reject  it  on  the  ground  that 
it  destroys  individual  rights  and  makes  a  man  a 
slave  to  his  fellow-men.  It  is  not  a  harsh  doc- 
trine to  one  who  wishes  to  do  right.  While  it 
seems  to  make  one  a  slave  to  his  fellow-men,  it 
also  seems  to  make  them  his  slaves;  in  reality 
it  makes  no  slaves ;  but  makes  all  to  be  servants 
of  all  in  a  brotherhood. 

This  conception  of  the  state,  instead  of  mak- 
ing men  slaves,  is  necessary  for  freedom  of  the 
right  kind.  There  is  no  right  to  do  wrong. 
There  can  be  no  ethical  freedom  to  do  injustice. 
The  only  apparent  freedom  which  the  state 
takes  away  is  not  ethical  freedom.     The  indi- 


14  The  Kansas   Court 

vidual  should  want  no  freedom  to  do  wrong, 
should  want  no  liberty  to  be  unjust.  The  limi- 
tations which  the  state  must  set  for  conduct 
are  necessary  for  freedom  itself.  We  can  only 
enjoy  any  rights  at  all  as  long  as  the  state  pro- 
tects us  in  such  enjoyment  by  preventing  others 
from  disturbing  us  in  our  rightful  enjoyments. 
We  can  have  no  liberty  at  all  except  that  which 
the  state  secures  for  us  by  its  protection,  and 
that  protection  prevents  others  from  invading 
our  liberty.  Within  the  state  we  give  up  the 
apparent  liberty  to  do  wrong  in  exchange  for 
protection  in  our  real  liberty  to  do  right :  We 
give  up  the  lower  in  exchange  for  the  higher 
liberty. 

Take  away  the  protection  of  the  state  and 
we  have  neither  freedom  nor  liberty  of  any 
kind;  we  have  only  danger  and  destruction. 
Take  away  the  sovereignty  of  the  state  and  we 
have  deprived  the  state  of  the  power  to  protect. 
The  speed  regulations  on  the  highway  limit  my 
right  to  drive  recklessly,  but  in  return  it  gives 
me  protection  to  drive  in  safety.  Give  me  free- 
dom to  drive  at  any  speed  without  limit  and 
others  have  the  freedom  to  drive  so  fast  as  to 
deprive  me  of  the  safe  use  of  the  highway 
at  all. 

The  radical  leader  of  the  coal  miners'  union 


Duty  of  State  and  Court  i^ 

declares  that  the  state  shall  not  take  away  his 
right  to  order  the  miners  to  shut  off  our  coal 
supply;  and  he  apparently  forgets  that  by  the 
same  mistaken  philosophy  some  other  organ- 
ization could  shut  off  his  bread  supply,  his  meat 
supply,  all  his  supplies,  his  electric  lights,  his 
water  supply,  and  thus  destroy  him  with  hunger 
and  thirst  within  a  few  days. 

If  he  has  a  right  to  cut  off  our  coal  supply, 
then  we  have  a  right  to  cut  off  his  supply  of 
any  commodity  that  we  can  control.  If  he  has 
a  right  to  order  the  miners  to  quit  work,  then 
also  have  the  bakers  a  right  to  quit,  and  also 
the  grocers  and  the  dairymen.  But  this  is  all 
absurd.  The  firemen  have  no  right  to  quit  on 
the  way  to  a  fire  on  a  windy  day  when  the  city 
is  in  peril.  The  engineer  has  no  right  to  stop 
his  train  on  the  open  prairie  in  order  to  see  how 
much  the  passengers  will  give  him  to  continue 
the  journey.  The  soldier  has  no  right  to  strike 
for  higher  wages  on  the  eve  of  battle.  What 
would  we  think  of  the  postal  clerks  if  they 
should  all  strike  just  the  day  before  Christmas? 
On  the  other  hand,  suppose  that  these  men  are 
really  being  underpaid  and  find  the  strike  the 
only  means  of  securing  a  just  wage?  Then  we 
should  have  some  instrumentality  of  the  state 
to  adjust  the  matter  in  due  time  and  without 


l6  The  Kansas   Court 

great  loss,  waste  or  sacrifice;  such  an  institu- 
tion is  the  Kansas  Court  of  Industrial  Rela- 
tions. 

And  again  some  conscientious  objector  says, 
"  Has  the  state  a  right  to  step  in  and  control 
the  actions  of  men  in  such  cases?  "  And  again 
we  say  that  the  state  cannot  protect  its  citizens 
unless  it  has  unlimited  power.  To  protect  per- 
sons and  property,  its  power  over  persons  and 
property  must  be  unlimited.  If  we  would,  we 
cannot  escape  the  conclusion  that  everything 
within  the  territory  of  the  state  belongs  ulti- 
mately to  the  state  and  is  always  under  the 
supreme  control  of  the  state;  in  other  words 
everything  belongs  to  the  people  and  may  be 
used  for  the  welfare  of  the  people.  The  state 
may  protect  an  individual  in  the  holding  of  his 
property  as  against  all  other  individuals,  but  he 
cannot  hold  it  against  the  state,  for  who  would 
give  him  strength  to  hold  it  against  the  state. 
The  questions  are:  what  is  just,  what  is  right, 
what  is  best  for  the  general  welfare  in  the  long 
run? 

While  an  individual  may  rightly  hold  the 
product  of  his  labor  as  against  any  other  indi- 
vidual, how  could  he  hold  it  against  the  state, 
for  he  depends  upon  the  state  for  the  protec- 
tion of  both  his  property  and  himself. 


Duty  of  State  and  Court  ij 

If  we  think  of  our  rights  first  we  are  apt 
to  either  forget  our  duties  or  not  get  a  clear 
conception  of  our  duties.  If  we  try  to  de- 
termine our  duties  without  thinking  of  the  wel- 
fare of  all  we  are  quite  sure  to  have  a  narrow 
conception  of  duty.  If  we  first  think  wisely 
of  the  welfare  of  all  others,  then  we  are  in  the 
right  attitude  to  determine  our  duties  toward 
self  and  others;  and  having  determined  our 
own  duties  in  a  broad  and  generous  way,  we 
are  then,  and  not  until  then,  prepared  to  see 
something  concerning  our  own  rights.  We 
need  to  think  much  less  about  our  rights  and 
much  more  about  our  duties.  And  we  need 
to  think  more  about  our  duties  to  all  of  our 
fellow-men  rather  than  to  limit  our  duties  to 
those  of  our  own  household.  We  need  to  get 
the  heart  right  toward  our  fellow-men.  We 
need  to  love  our  brothers.  Even  then  we  shall 
have  differences  of  opinion  and  industrial  con- 
flicts calling  for  adjudication.  Just  here  is 
where  we  want  a  tribunal  of  judgment  and  au- 
thority like  the  Industrial  Court  to  settle  our 
differences  without  loss  and  without  fighting. 

We  must  understand  the  proper  function  of 
the  state  and  of  government.  Some  individ- 
ualists have  held  that  the  state  should  do  as 
little    as    possible  —  do    only    what    it    must 


1 8  The  Kansas   Court 

do  —  in  order  to  protect  its  citizens  from  con- 
flict within  and  invasion  from  without.  Other 
persons  with  more  socialistic  tendencies  have 
held  that  the  state  should  take  over  the  owner- 
ship and  control  of  all  industries  and  of 
nearly  all  social  activity.  Most  persons  favor 
a  policy  somewhere  between  these  two  ex- 
tremes. Some  say  that  the  government  should 
do  whatever  can  be  done  better  by  government 
than  by  private  endeavor.  In  America  today 
it  seems  to  be  the  policy  of  the  majority  to 
leave  the  largest  possible  freedom  for  pri- 
vate enterprise  with  governmental  supervision 
where  such  supervision  is  necessary. 

How  far  shall  government  go  in  taking  over 
services  that  might  be  left  to  private  enter- 
prise; and  how  far  shall  government  go  in  the 
supervision  of  private  enterprises?  These 
questions  are  with  us  constantly;  and  the 
American  method  seems  to  be  to  answer  each 
question  as  it  arises  on  its  own  merits.  We 
hold  that  whatever  the  government  can  do 
much  better  than  private  initiative,  is  some- 
thing that  the  government  should  do.  We 
have  examples  of  this  in  carrying  the  mails 
and  in  maintaining  public  schools.  We  also 
hold  that  when  private  business  in  an  essential 
industry  breaks  dovm  and  fails  to  serve  the 


Duty  of  State  and  Court  19 

public,  then  government  must  take  a  hand  in 
its  own  protection.  In  this  case  the  govern- 
ment may  more  wisely  supervise  and  adjudi- 
cate differences  than  take  over  the  ownership 
and  management  of  such  industries.  This  su- 
pervision and  adjudication  is  just  the  function 
of  the  Kansas  Industrial  Court.  Those  who 
question  the  right  of  the  state  to  do  this  need 
a  better  understanding  of  the  functions  of  gov- 
ernment. What  the  state  may  rightly  do  is  de- 
termined by  the  welfare  of  the  whole  people. 

Concerning  any  proposed  movement  one  of 
the  primary  questions  is :  how  will  the  welfare 
of  the  whole  people  be  affected.  Questions 
concerning  state  ownership  or  private  owner- 
ship with  or  without  state  supervision  are  to 
be  answered  in  the  light  of  the  general  welfare. 
The  first  question  is  always :  how  will  it  affect 
the  welfare  of  the  larger  brotherhood?  The 
moment  that  state  supervision,  state  control,  or 
state  ownership  will  best  serve  the  welfare  of 
the  larger  brotherhood,  then  it  is  the  right  of 
the  state  to  assume  the  new  relationship.  Even 
the  right  of  private  property  can  never  be  ab- 
solute, but  is  always  subject  to  the  welfare  of 
the  brotherhood.  No  person  can  ever  have  the 
right  to  use  his  property  for  the  degradation 
and  debasement  of  the  community. 


20  The  Kansas   Court 

In  the  case  of  the  compulsory  school  laws 
requiring  that  children  either  attend  the  public 
school  or  show  cause  for  not  doing  so,  (such 
cause  as  sickness  or  the  fact  that  they  are  being 
educated  otherwise,)  we  see  that  even  children 
do  not  belong  to  their  parents  alone,  and  are 
not  under  the  control  of  their  parents  alone 
but  are  also  under  the  control  of  the  state.  In 
medical  inspection,  dental  inspection,  quaran- 
tine, vaccination,  and  health  regulations  we  see 
that  the  rights  of  parents  over  their  children 
are  qualified  by  regulations  for  the  community 
welfare. 

Every  community  becomes  truly  civilized  in 
proportion  as  it  approaches  the  ideal  of  a 
brotherhood  and  it  should  do  all  in  its  power  to 
realize  this  ideal  in  all  relationships  among  its 
own  citizens,  and  in  all  its  relations  with  other 
communities.  Just  as  the  rights  of  any  indi- 
vidual man  are  limited  by  obligations  to  his 
fellow-men,  so  the  rights  of  any  community 
are  limited  by  obligations  to  other  communi- 
ties, and  the  rights  of  states  are  limited  by 
obligations  to  other  states.  The  rights  of  any 
community  or  state  are  limited  by  the  rights 
of  all  humanity. 

The  duty  of  the  state  is  not  only  to  protect 
the  brotherhood  but  also  to  perfect  the  brother- 


Duty  of  State  and  Court  21 

hood.  This  is  to  be  accomplished  by  increase 
in  wealth,  in  health,  in  culture  and  in  all  the 
ethical  and  rightful  interests  of  man.  That 
wealth  may  be  increased;  whatever  wastes 
wealth  or  reduces  production  is  the  affair  of 
the  state,  and  whatever  can  be  done  to  increase 
production  is  the  duty  of  the  state.  Whatever 
will  increase  the  average  of  health  and  work- 
ing strength  is  a  problem  for  the  state  as  well 
as  for  public-spirited  individuals.  Also  in  like 
manner  culture,  education,  morals,  and  religion 
are  problems  for  the  state  as  well  as  for  the 
individual. 

At  no  time  in  the  past  has  human  freedom 
been  so  great  as  it  is  now  along  the  most  de- 
sirable lines.  At  no  time  in  the  past  has  the 
individual  had  such  opportunities  for  the  full 
development  of  all  his  powers  and  such  chances 
for  a  rational  happiness,  and  yet  the  supremacy 
of  the  state  over  all  human  interests  was  never 
greater.  As  the  state  has  increased  the  range 
of  its  activities  for  the  good  of  its  citizens,  the 
citizens  have  not  felt  any  harmful  restrictions 
at  all  but  have  felt  increased  security  in  the 
pursuit  of  the  best. 

The  right  of  the  state  to  improve  in  its 
work  of  protecting  the  individual  and  promot- 
ing the  perfection  of  the  brotherhood  should 


22  The  Kansas   Court 

not  be  questioned,  and  its  endeavors  along  that 
line  should  not  be  hindered  by  a  mistaken  in- 
dividualism. We  should  cultivate  an  attitude 
of  respect  for  the  state  and  reverence  for  law 
and  a  disposition  to  obey  the  law  and  help  to 
make  the  laws  better,  rather  than  to  nullify 
them.  When  we  nullify  the  law  or  hold  it  in 
contempt  we  are  blindly  hurting  ourselves  and 
all  other  members  of  the  brotherhood.  There 
never  has  been  and  never  can  be  any  true  lib- 
erty that  does  not  come  through  law  and  the 
observance  of  law.  A  freedom  that  knows  no 
law  is  soon  lost  in  barbarism ;  but  the  freedom 
which  the  law  protects  leads  to  peace  and  pros- 
perity and  true  liberty. 

The  state  and  law  and  government  are  to 
be  reverenced  as  the  guardians  of  the  brother- 
hood, the  guarantors  of  all  legitimate  rights, 
as  the  protectors  of  both  weak  and  strong,  and 
the  source  of  all  security  against  disintegration 
and  anarchy.  In  proportion  as  each  individual 
shall  strive  to  serve  the  brotherhood  and  re- 
spect the  government  and  make  it  better  all 
evils  shall  be  diminished  and  true  freedom  and 
liberty  to  do  right  shall  prevail,  and  peace  and 
happiness,  and  prosperity  shall  reign  supreme. 

"  New  occasions  teach  new  duties,"  and  as 
new  dangers  arise  the  state  must  provide  new 


Duty  of  State  and  Court  23 

securities  for  the  protection  of  the  brother- 
hood. The  gigantic  industrial  warfare  going 
on  almost  constantly  at  the  present  time  is  a 
new  danger  to  all  concerned.  For  the  past  two 
or  three  decades  nearly  all  states  have  recog- 
nized the  need  of  some  instrument  of  gov- 
ernment for  protecting  their  citizens  from  loss 
and  from  harm  due  to  these  industrial  con- 
flicts. In  America  we  have  witnessed  anti- 
trust legislation,  committees  of  investigation, 
corporation  commissions  and  boards  of  arbi- 
tration. These  have  all  served  some  useful 
purpose  but  all  of  them  alike  have  failed  in 
most  critical  hours  to  prevent  conflict  and  need- 
less waste  and  positive  peril.  For  some  time  it 
has  been  apparent  that  some  stronger  and 
more  effective  instrumentality  was  needed. 
From  this  felt  need  sprang  the  Kansas  Court 
of  Industrial  Relations  with  power  not  only 
to  investigate  and  advise  and  promote  arbitra- 
tion, but  also  when  necessary  to  adjudicate 
differences  and  put  an  end  to  warfare.  Those 
who  question  the  right  of  government  to  ex- 
ercise this  power  should  make  a  more  careful 
study  of  the  true  nature  and  function  of  gov- 
ernment. 

A    careful    consideration    of    the    different 
theories  of  government  will  reveal  the  true  and 


24  The  Kansas   Court 

the  false  by  the  fact  that  the  true  theories  of 
government  will  stand  the  test  of  reason  and 
experience,  while  the  false  theories  will  not 
stand  the  test  of  reason  and  experience. 
Among  the  false  theories  now  discarded  are 
the  jure  divino  theory  or  the  theory  of  the  di- 
vine right  of  kings.  According  to  this  theory 
government  did  not  rest  with  the  people  as  a 
whole,  or  with  any  class  of  people  but  was 
divinely  given  to  one  who  inherited  the  right 
to  rule.  The  Scriptures  were  quoted  to  support 
this  theory  but  such  an  interpretation  of  the 
Scriptures  was  a  wrong  interpretation.  The 
Scriptures  teach  just  the  opposite  theory  of 
government. 

Another  misleading  theory  is  the  social-com- 
pact theory  by  which  it  is  supposed  that  men 
have  agreed  to  live  together  under  a  certain 
form  of  government.  The  small  element  of 
truth  in  this  theory  is  that  men  have  agreed  as 
to  the  forms  of  their  government;  but  it  is 
not  left  to  men  to  agree  or  not  as  to  whether 
they  will  have  a  government.  Government  is 
inevitable.  Man  has  no  choice  in  the  matter. 
He  cannot  agree  or  refuse  to  agree  to  live 
under  a  government.  Men  may  change  the 
forms  of  their  governments  and  in  that  par- 
ticular they  may  agree,  but  they  cannot  de- 


Duty  of  State  and  Court  25 

cide  that  they  will  have  no  government  at  all. 
Government  is  an  absolute  necessity  from 
which  men  cannot  escape.  Government  is  the 
inevitable  instrument  of  the  state  for  its  pro- 
tection and  is  necessary  for  the  life  of  the  state. 
When  Louis  xiv  said,  "  I  am  the  state,"  his 
expression  was  wrong,  but  had  he  said  "  I  am 
the  government  "  his  expression  would  have 
been  very  near  the  truth.  The  people  were 
permitting  him  to  exercise  the  functions  of 
government  but  the  people  themselves  were  the 
state  and  could  change  the  government  which 
they  later  did. 

Another  theory  of  government  which  has 
some  bearing  on  the  right  of  the  state  to  es- 
tablish an  industrial  court,  is  the  theory  that 
the  functions  of  government  shall  be  limited  to 
protection.  While  this  theory  has  had  a  few 
great  advocates  like  Herbert  Spencer,  the  the- 
ory has  not  been  accepted  by  the  states  in  which 
we  are  interested,  for  these  states  have  added 
to  the  duties  of  protection  also,  certain  func- 
tions of  service  on  the  ground  that  the  state 
could  perform  such  services  better  than  could 
private  organizations.  Examples  are  postal 
services,  public  education  and  health  supervi- 
sion. 

Even  if  we  were  to  accept  the  theory  that 


26  The  Kansas  Court 

the  state  in  its  governmental  functions  should 
be  limited  to  the  duties  of  protection,  we  find 
new  perils  calling  for  new  forms  of  protection. 
We  find  that  the  people  need  to  be  protected 
from  the  results  of  industrial  warfare  and 
that  the  old  fashioned  policeman  is  not  em- 
powered to  furnish  this  new  protection.  This 
new  danger  calls  for  a  new  type  of  public  serv- 
ant—  some  new  guardian  of  the  public  safety 
is  needed;  and  the  Industrial  Court  meets  the 
need. 

The  fact  that  the  law  creating  the  Industrial 
Court  has  in  it  features  that  are  new  is  no 
adequate  argument  against  it,  for  it  is  designed 
to  meet  a  new  condition  and  solve  a  new  prob- 
lem. Every  law  was  at  one  time  new.  Some 
say  that  we  now  have  too  many  laws.  We 
cannot  well  have  too  many  wise  laws,  for  the 
advancement  of  civilization  is  marked  by  the 
•  addition  of  new  laws.  The  naked  savage  has 
but  few  laws  and  needs  but  few,  because  his 
wants  are  few  and  his  relationships  to  his  fel- 
lows are  few.  But  just  as  soon  as  the  simple 
savage  begins  to  make  progress  —  to  accumu- 
late goods  and  tools  and  invent  new 
methods  —  he  finds  a  need  for  new  laws  to 
govern  the  new  relationships.  So  long  as  the 
savage  has  no  private  property  he  needs  no 


Duty  of  State  and  Court  27 

laws  concerning  private  property,  but  the  mo- 
ment he  recognizes  private  property  he  feels 
the  need  of  laws  for  that  new  condition.  So 
long  as  the  will  of  an  arbitrary  ruler  was 
law,  the  subject  need  give  himself  no  concern 
about  laws,  but  as  soon  as  the  power  of  the 
king  was  limited  by  the  establishment  of  parlia- 
ments, laws  became  the  necessary  expression 
of  such  parliaments,  or  the  expression  of  the 
will  of  the  people  worded  by  their  elected  law 
makers.  The  more  civilized  men  are  the  more 
laws  they  find  necessary,  and  the  more  laws 
they  willingly  obey.  Every  great  forward 
movement  in  civilization  has  been  marked  by 
the  enactment  of  new  laws  which  were  usually 
at  first  resented  by  the  conservatives  but  after- 
ward respected  by  all. 


CHAPTER  II 

THE    COAL   STRIKE 

IT  WILL  be  remembered  that  a  general  coal 
strike  was  ordered  during  the  winter  of 
1919-20.  This  strike  imperiled  the  public  al- 
most immediately.  In  Kansas,  as  elsewhere, 
there  was  at  once  a  shortage  of  coal.  Homes 
and  hospitals  were  short  of  coal.  Schools  and 
churches  closed.  Business  houses  shortened 
their  hours.  Industries  were  compelled  to 
close  causing  unmeasured  hardship,  suffering 
and  losses. 

In  Kansas  the  situation  was  unusually  acute. 
The  hostility  between  the  operators  and  miners 
was  of  long  standing.  Here  the  miners  were 
one  hundred  per  cent  unionized  under  the 
dictatorship  of  Alexander  Howat,  district 
president,  who  was  especially  rigid  in  his  domi- 
nation of  the  miners  and  caustic  in  his  denunci- 
ation of  everything  against  which  he  could 
arouse  hostile  feeling.  This  situation  having 
existed  for  some  time  the  feelings  of  antipathy 
made  compromise  or  mediation  almost  im- 
possible. 

Because  of  the  frequency  of  strikes  in  the 
28 


The  Coal  Strike  29 

past  and  the  consequent  feelings  engendered, 
the  Kansas  coal  fields  had  come  to  be  known  as 
the  "  bad  lands."  During  recent  years  prior 
to  that  time,  December,  1920,  in  the  Kansas 
coal  fields  there  had  been  more  than  a  hundred 
strikes  a  year,  counting  all  that  had  occurred 
at  all  the  small  mines,  and  the  losses  to  the 
miners  had  approximated  nearly  $1,000,000  a 
year,  for  which  they  had  gained  almost  nothing 
in  return.  In  1919  the  miners  in  this  district 
had  paid  out  in  dues  and  assessments  more 
than  $150,000,  to  maintain  their  organization. 
The  operators  made  sufficient  profits  to  stand 
the  losses  that  fell  upon  them,  the  miners,  be- 
cause of  such  frequent  strikes,  were  in  constant 
want  and  often  in  poverty,  and  the  public  al- 
ways paid  dearly  for  that  private  warfare. 

About  the  only  measures  of  amelioration  had 
been  provided  by  the  state  in  the  way  of  safety 
appliances  and  in  building  rescue  stations  at 
public  expense. 

It  was  the  boast  of  Howat  that  not  one 
pound  of  coal  would  ever  be  produced  in  that 
district  except  under  unionized  conditions ;  and 
for  a  number  of  years  no  coal  had  been  pro- 
duced except  under  the  regulations  of  the 
union.  Unionization  was  compulsory  and  the 
discipline  applied  to  the  miners  by  the  union 


30  The  Kansas   Court 

officials  was  severe  and  unrelenting.  It  was 
bait  natural  with  this  state  of  constant  hostili- 
ties that  all  welfare  work  should  be  neglected 
and  that  housing  conditions  and  living  methods 
should  be  very  bad.  Indeed,  here  where  or- 
ganization was  most  complete  and  the  union 
most  militant  the  lot  of  the  laborer  was  the 
least  desirable  of  any  place  in  the  state  of 
Kansas.  It  had  been  so  for  such  a  long  time 
that  people  had  ceased  to  hope  for  anything 
better  and  had  come  to  look  upon  this  most  un- 
happy situation  as  an  unavoidable  concomitant 
of  the  never-ending  warfare  between  or- 
ganized capital  and  unionized  labor.  If  organ- 
ized labor  and  the  strike  could  do  anything  for 
the  good  of  labor  surely  they  ought  to  do  some- 
thing good  here  in  the  coal  fields  of  Kansas 
where  organization  was  one  hundred  per  cent, 
discipline  rigid  and  the  strike  most  frequent. 
Nevertheless  right  here  the  lot  of  labor  was 
most  pitiable  and  the  whole  situation  most  un- 
satisfactory. 

And  these  were  the  conditions  that  prevailed 
when  the  freezing  public  appealed  to  the  Gov- 
ernor and  to  the  Supreme  Court  of  the  State 
to  do  something  to  save  the  people  from  the 
peril  of  suffering  and  death. 

Everywhere  the  shortage  of  coal  was  peril- 


The  Coal  Strike  31 

ous.  The  people  faced  the  possibility  of  freez- 
ing in  their  homes,  while  the  threat  that  the 
railroads  would  stop  brought  the  people  of  our^ 
cities  face  to  face  with  actual  starvation.  Both 
the  operators  and  Howat,  the  president  and  ab- 
solute ruler  of  the  miners,  were  more  than 
obdurate,  they  were  adamant,  and  seemed  ab- 
solutely unconcerned  about  the  freezing  public. 
In  many  quarters  the  suffering  was  already 
acute  and  everywhere  the  total  supply  of  coal 
would  soon  be  exhausted. 

The  Supreme  Court  was  asked  to  turn  over 
the  mines  of  the  state  to  a  receivership  as  an 
absolute  necessity  to  save  life  and  prevent 
further  suffering.  The  Supreme  Court  granted 
the  petition  and  the  property  of  the  mines  was 
turned  over  to  the  state  "  to  operate  temporar- 
ily for  the  purpose  of  meeting  the  emergency 
and  protecting  the  public  health  and  safety." 
Even  after  the  mines  had  been  acquired  by  the 
state  Governor  Allen  spent  some  days  trying  to 
persuade  the  miners  to  go  back  and  operate 
the  mines;  and  he  promised  them  that  if  they 
would  begin  work  he  would  see  that  the  wage 
scale  granted  by  the  conference  then  going  on 
at  Washington  between  operators'  and  miners' 
officials  should  date  back  to  the  time  that  they 
should  go  to  work.     He  further  assured  the 


32  The  Kansas   Court 

miners  that  if  the  operators  and  miners  at 
Washington  failed  to  make  an  agreement 
within  a  reasonable  time,  that  the  state  would 
take  up  the  matter  and  make  an  agreement  as 
to  wages,  and  such  wages  would  be  retroac- 
tive to  cover  the  time  the  work  was  done 
under  the  direction  of  the  state.  The  miners' 
officials  tried  to  prevent  the  Governor  from 
speaking  to  the  miners  by  giving  out  the  im- 
pression that  he  would  be  disturbed  and  that 
disorder  would  result.  In  that  the  miners' 
officials  misrepresented  the  miners.  They  lis- 
tened respectfully  to  the  Governor  and  many 
wished  to  return  to  work  but  were  restrained 
by  their  officials. 

"If  you  can  get  Howat  to  order  us  back  to 
work  we  will  be  glad  to  return  to  work  "  was 
the  well-nigh  unanimous  expression  of  the 
miners.  Howat  was  in  Washington  in  confer- 
ence with  other  leaders.  He  sent  almost  daily 
messages  urging  the  miners  not  to  desert  him. 
Many  miners  said  that  they  were  anxious  to 
work  so  as  to  feed  their  families  but  that  they 
feared  the  persecution  that  would  be  meted  out 
to  them  if  they  disobeyed  the  officials  of  the 
union. 

After  one  week  of  persuasion  and  fruitless 
negotiation  the  Governor  and  his  advisers  were 


The  Coal  Strike  33 

convinced  that  the  miners'  officials  would  not 
allow  the  miners  to  return  to  work  in  time  to 
avert  disaster.  Then  the  Governor  called  for 
volunteer  miners.  To  this  call  eleven  thousand 
men  responded  from  Kansas  in  two  days;  and 
in  addition  many  from  neighboring  states 
offered  their  services.  Governor  Samuel  R. 
McKelvie  of  Nebraska  sent  a  telegram  offering 
to  send  fifteen  hundred  young  men  to  help 
operate  the  mines,  and  called  attention  to  the 
fact  that  Nebraska  has  no  mines  and  was  on 
the  verge  of  great  suffering. 

Governor  Allen  came  himself  to  Pittsburg, 
Kansas,  the  center  of  the  coal  mining  region  of 
Kansas,  and  personally  took  charge  of  opera- 
tions. In  this  region  much  of  the  coal  is  dug 
from  strip-pits  or  surface  mines  and  the  Gov- 
ernor began  operating  these  first  because  these 
mines  are  comparatively  safe  for  inexperienced 
men.  For  this  work  the  Governor  chose  a 
sufficient  number  of  very  capable  and  worthy 
young  men,  some  of  them  college  students, 
many  of  them  had  seen  service  in  the  American 
Expeditionary  Force  in  France.  A  regiment^ 
of  the  Kansas  National  Guard  was  brought 
along  to  see  that  no  disorders  occurred;  and 
General  Leonard  A.  Wood  sent  six  hundred 
troops  to  fonn  an  encampment  here,  and  be 


34  The  Kansas   Court 

ready  in  the  event  that  they  should  be  needed. 
The  federal  troops  were  not  needed.  The 
miners  showed  very  little  resentment. 

The  miners  had  been  told  just  what  would  be 
done  if  they  refused  to  work  the  mines,  and 
they  had  been  given  every  opportunity  to  re- 
turn to  work  under  the  state.  Thoughtful  men 
on  the  ground  say  that  if  the  soldiers  had  not 
been  present  there  might  have  been  disturb- 
ances but  with  the  soldiers  present  there  was 
not  the  smallest  sign  of  resistance.  As  the 
trains  came  in  bringing  the  first  bodies  of  vol- 
unteer workers,  there  were  gathered  at  the 
stations  numbers  of  miners  apparently  waiting 
to  greet  the  "  strikebreakers  "  in  the  usual  way 
but  in  those  instances  there  was  no  show  of 
resentment  at  all.  However,  these  young 
Kansas  volunteers  did  not  look  like  the  usual 
strike-breakers.  They  were  bright-looking, 
earnest,  clean  and  kindly-looking  men,  numbers 
of  them  wearing  their  soldier's  uniforms  and 
all  looking  so  worthy  that  to  receive  them  un- 
kindly would  have  seemed  entirely  out  of  place, 
and  would  have  cost  the  strikers  the  sympathy 
of  all  bystanders.  These  volunteers  excited  the 
respect  and  admiration  of  all  who  saw  them. 
The  weather  was  very  cold.  A  strip-pit  mine 
is  a  cold  place  when  the  weather  is  below  zero ; 


The  Coal  Strike  35 

it  was  bad  weather  to  dig  coal,  but  it  was  also 
bad  weather  to  be  without  coal. 

The  volunteers  went  straight  to  the  mines 
and  while  the  National  Guard  watched,  these 
volunteers  went  to  work  at  tasks  that  were  new 
to  them  and  very  difficult  for  the  inexperi- 
enced, but  they  were  heroic. 

The  experienced  miners  and  their  friends 
predicted  that  these  unskilled  men  could  never 
dig  coal,  and  if  they  did  dig  a  little  it  would 
cost  a  fabulous  price.  But  they  did  dig  enough 
coal  to  tide  over  the  emergency  and  the  cost 
was  not  such  as  to  mar  the  success  of  the  en- 
terprise. 

Despite  all  the  dire  predictions  to  the  con- 
trary, the  experiment  of  working  the  mines 
with  volunteers  under  the  Governor  was  a  suc- 
cess. All  expenses  were  paid  except  the  cost 
of  the  National  Guard,  about  $70,000,  and  that 
may  rightly  be  regarded,  not  as  an  expense  of 
mining,  but  of  government  or  police  protec- 
tion. It  was  a  success  because  the  emergency 
was  met,  and  had  the  miners  not  returned  to 
work  the  volunteers  would  have  continued  to 
work  the  mines,  with  some  changes  in  the  per- 
sons employed.  But  when  the  miners  saw  that 
the  Governor's  volunteers  were  learning  to 
work  the  mines  successfully,  they  settled  their 


36  The  Kansas   Court 

difficulties  and  asked  to  have  their  places  re- 
turned to  them.  The  miners  returned  to  work 
and  the  volunteers  and  soldiers  moved  away  as 
quickly  and  as  peaceably  as  they  had  come. 

Onlookers  expressed  great  admiration  for 
the  volunteers.  Those  fine  young  men  were 
paid  $5.70  per  day,  but  they  had  not  asked 
what  the  pay  was  to  be,  nor  did  they  ask  about 
the  hours.  They  worked  from  early  till  late 
and  slept  in  tents  and  temporary  shelters  and 
ate  in  the  open  air  in  severe  weather  without 
complaint,  bearing  themselves  always  in  a  most 
commendable  manner.  Something  that  seems 
almost  providential  is  that  with  all  the  hard- 
ships there  was  almost  no  sickness,  no  deaths, 
and  no  conflicts  between  soldiers  and  civilians. 

The  soldiers  also  deported  themselves  in  a 
way  that  called  forth  the  admiration  of  the 
citizens.  Both  soldiers  and  volunteers  endured 
the  inclement  weather  in  their  tents  though 
many  citizens  expressed  a  wish  to  take  them 
into  their  more  comfortable  homes. 

The  fine  spirit  of  intelligent  restraint  shown 
by  the  young  soldiers  may  be  illustrated  by  the 
following  narrative :  One  of  the  mine  owners 
followed  the  volunteers  and  soldiers  out  to  his 
surface  mine  and  protested  that  such  unskilled 
labor  would  ruin  his  machinery,  and  then  pro- 


The  Coal  Strike  37 

tested  more  violently  when  the  volunteers  took 
some  of  his  lumber  to  kindle  a  fire  under  the 
boiler.  At  this  point  the  owner  made  some 
actual  bodily  interference  and  the  young  soldier 
on  guard  said  kindly  but  firmly :  "  We  will  op- 
erate this  mine  until  you  start  to  operate  it 
yourself,  so  please  stand  back  and  do  not  in- 
terfere with  the  workers."  Then  the  owner 
stood  back  and  continued  his  wailing,  but 
offered  no  physical  interference  and  the  soldier, 
being  patient,  did  not  hurt  him.  Incidents  like 
this  gave  the  people  confidence  in  the  volun- 
teers and  the  soldiers. 

A  typical  instance  of  the  utter  disregard  of 
the  union  officials  for  the  welfare  of  others  is 
shown  in  the  case  of  the  hospital  at  Pittsburg, 
in  which  there  were  several  hundred  sick  per- 
sons and  many  of  them  were  union  miners. 
This  hospital  was  just  out  of  coal  and  the 
union  officials  refused  to  allow  any  coal  to  be 
furnished  even  though  it  meant  that  the  fires 
would  go  out  and  many  deaths  result  at  once, 
not  a  few  of  them  union  miners.  The  Gov- 
ernor's volunteers  had  to  save  these  lives  with 
the  despised  "  scab  coal." 

In  Pittsburg  many  of  the  people  are  afraid 
of  offending  the  union  laborers,  and  so  they 
were  just  a  little  cautious  about  giving  an  open 

^  9  \)  I   j 

iJ  i»i  ^w  X   I. 


38  The  Kansas   Court 

welcome  to  the  Governor  and  his  volunteers; 
but  the  success  of  the  Governor's  endeavors, 
the  fine  spirit  of  his  volunteers,  and  the  re- 
peated obduracy  of  the  miners'  officials  and 
mine  owners  caused  the  sentiment  to  turn 
toward  the  Governor  and  his  men.  Ten  days 
from  the  time  that  Governor  Allen  began  op- 
erations the  Pittsburg  Chamber  of  Commerce 
met  and  passed  a  resolution  endorsing  the  ac- 
tion of  the  state;  and  business  men  began  to 
talk  about  a  new  "  declaration  of  independ- 
ence "  for  Pittsburg. 


CHAPTER  III 

THE   MAKING  OF  THE  INDUSTRIAL   COURT 

IN  JANUARY  1920,  while  the  state  was  still 
operating  the  coal  mines  around  Pittsburg, 
Kansas,  Governor  Allen  called  the  legislature 
in  special  session  for  the  purpose  of  enacting 
some  legislation  which  would  in  the  future 
prevent  the  recurrence  of  such  wasteful  indus- 
trial methods  and  protect  all  concerned  against 
such  industrial  conflicts. 

The  Governor  made  a  careful  study  of  the 
arbitration  boards  and  various  industrial  tri- 
bunals of  New  Zealand,  Australia  and  Canada 
which  are  based  upon  the  general  methods  of 
arbitration,  and  found  that  neither  of  these 
systems  adequately  met  the  situation.  The 
leading  members  of  the  legislature  joined  the 
Governor  in  making  investigations  concerning 
the  merits  of  arbitration  and  agreed  with  him 
that  a  better  basis  of  settlement  must  be  found 
than  one  that  depends  upon  arbitration,  either 
voluntary  or  compulsory,  for  arbitration  at  the 
best  does  not  consider  the  welfare  of  the  pub- 
lic. Therefore  the  method  of  arbitration  was 
abandoned  and  the  method  of  adjudication  was 
39 


40  The  Kansas   Court 

selected  as  a  basis  upon  which  to  build  some 
institution  that  should  be  able  to  prevent  the 
future  break-down  of  an  essential  industry. 

The  people  of  Kansas  as  a  whole  are  not  so 
very  different  from  the  people  of  other  states. 
But  history  and  present  facts  will  support  the 
proposition  that  the  governing  majority  of  the 
people  of  Kansas  are  as  intelligent  and  as  sane- 
ly progressive  as  those  of  any  state  in  the 
Union.  We  say  that  this  governing  majority 
in  Kansas  is  sanely  progressive  but  not  radical 
or  socialistic.  When  brought  face  to  face  with 
the  questions  involved  they  were  ready  to  adopt 
new  measures  for  the  protection  of  the  people, 
provided  such  measures  could  be  made  safe  and 
practical.  The  people  had  suffered  from  the 
coal  famine  and  had  realized  how  much  worse 
it  might  have  been  had  not  the  Governor  dealt 
with  the  situation  successfully. 

Therefore,  when  the  Governor  called  the 
legislators  together  in  January,  1920,  they 
were  almost  unanimous  in  their  convictions 
that  it  is  the  business  of  government  to  protect 
the  people  against  suffering  from  the  need  of 
some  essential  commodity  which  may  be  with- 
held by  some  private  organization.  Those  leg- 
islators did  not  show  the  least  antagonism 
toward  either  capital  or  labor  as  such.     They 


Making  of  Industrial  Court        41 

were  too  wise  to  be  led  at  all  in  the  direction 
of  any  sort  of  class  antagonism.  What  they 
sought  was  equity  for  all.  Governor  Allen  in 
calling  the  special  session  had  suggested  the 
salient  features  of  the  proposed  law  that  would 
be  presented  for  their  consideration  so  that 
they  were  ready  for  its  immediate  considera- 
tion. Also  the  suggested  law  at  once  aroused 
some  opposition.  This  opposition  came  from 
certain  employers  who  called  it  "  socialism," 
and  from  certain  labor  leaders  who  called  it  "  a 
conspiracy  against  labor."  The  law  is  neither 
socialism  nor  a  conspiracy  against  labor,  but 
protection  for  all  concerned  against  the  horrors 
of  private  industrial  warfare. 

Before  the  legislature  assembled  the  law  was 
prepared  in  conference  with  the  judiciary  com- 
mittees of  both  the  House  and  the  Senate. 
When  the  bill  was  introduced  in  the  House 
that  branch  of  the  legislature  thought  it  a  bet- 
ter method  to  consider  it  in  committee  of  the 
whole  rather  than  to  refer  it  to  the  judiciary 
committee  or  to  any  committee  less  numerous 
than  the  House  itself.  The  Senate  referred 
the  bill  to  its  judiciary  committee  for  consid- 
eration, while  the  senators  were  invited  by  the 
House  to  attend  the  meetings  of  the  House  for 
the  purpose  of   hearing  important  advocates 


42  The  Kansas   Court 

speak  both  for  and  against  the  bill.  Thus  the 
bill  had  the  most  careful  consideration  and  the 
opponents  of  the  bill  had  the  most  ample  oj)- 
portunity  to  be  heard  by  both  houses.  There 
was  absolutely  nothing  hidden  or  hasty  about 
the  way  in  which  the  bill  was  considered. 

Organized  labor  was  represented  by  a  num- 
ber of  national  leaders.  Their  most  notable 
representative,  Frank  P.  Walsh,  was  their 
spokesman.  He  occupied  seven  hours  speaking 
against  the  bill  and  the  members  gave  him  the 
closest  possible  attention.  The  opponents  of 
the  law  were  given  far  the  longest  time  allow- 
ance in  the  debate,  and  their  supporters  were 
present  in  large  numbers  to  give  them  psycho- 
logical backing. 

The  Governor  and  the  legislature  had  very 
little  difficulty  in  agreeing  upon  certain  definite 
purposes  which  they  desired  to  accomplish, 
stated  about  as  follows : 

So  far  as  possible,  to  insure  to  the  people  of  this 
state,  at  all  times,  an  adequate  supply  of  those  essential 
commodities  for  the  life  of  civilized  people. 

To  prevent  the  colossal  waste  which  goes  with  the 
old-fashioned  economic  battle  —  the  strike  and  the  lock- 
out. 

To  make  strikes,  lockouts,  boycotts,  and  blacklists  in 
essential  industries  unnecessary,  by  giving  both  labor 
and  capital  an  able  and  just  tribunal  in  which  to  settle 
all  controversies. 


Making  of  Industrial  Court        43 

To  stabilize  the  production  of  these  necessaries,  so 
far  as  possible,  by  stabilizing  the  price  to  the  producer 
as  well  as  to  the  consumer. 

To  insure  to  labor  a  more  steady  employment  at  a 
more  equitable  wage  under  better  working  conditions. 

To  make  the  law  respected  and  obeyed,  and  to  dis- 
courage and  ultimately  to  abolish  intimidation  and  vio- 
lence as  a  means  for  the  settlement  of  industrial  dis- 
putes. 

The  measure  as  it  passed  may  be  summed 
up  as  follows : 

First,  provides  that  the  operation  of  the  great  indus- 
tries affecting  food,  clothing,  fuel  and  transportation  is 
impressed  with  a  public  interest  and  subject  to  reason- 
able regulation  by  the  state. 

Second,  creates  a  worthy  tribunal,  vested  with  power, 
authority,  and  jurisdiction,  to  hear  all  controversies 
which  may  arise  and  which  threaten  to  hinder  or  delay 
or  suspend  the  operation  of  such  industries. 

Third,  declares  it  to  be  the  obligation  of  all  persons, 
firms,  corporations,  and  associations  of  persons  who 
are  engaged  in  such  industries  to  operate  the  same  with 
reasonable  continuity  so  that  the  people  of  this  state 
may  be  supplied  at  all  times  with  the  necessaries  of 
life. 

Foii/rth,  provides  that  in  all  cases  of  controversy 
arising  between  employers  and  employees,  or  between 
different  groups  of  crafts  or  workers,  which  may 
threaten  the  continuity  or  the  efficiency  of  such  indus- 
tries and  thus  the  production  or  the  transportation  of 
the  necessaries  of  life,  or  which  may  produce  an  in- 
dustrial strife  or  endanger  the  peaceful  operation  of 
such  industries,  it  shall  be  the  duty  of  such  tribunal, 
on  its  own  initiative  or  on  the  complaint  of  either 
party,  or  on  the  complaint  of  the  Attorney-General,  or 


44  The  Kansas   Court 

on  the  complaint  of  citizens,  to  investigate  and  determine 
the  controversy  and  to  make  an  order  prescribing  rules 
and  regulations,  hours  of  labor,  working  conditions, 
and  a  reasonable  minimum  wage,  which  shall  thereafter 
be  observed  in  the  conduct  of  such  industries  until  such 
time  as  the  parties  do  agree. 

Fifth,  provides  for  the  incorporation  of  unions  or 
associations  of  workers,  recognizing  the  right  of  col- 
lective bargaining  and  giving  full  faith  and  credit  to 
any  and  all  contracts  made  in  pursuance  of  such  right. 

Sixth,  provides  for  the  speedy  determination  of  the 
validity  of  any  such  order  made  by  said  tribunal  in 
the  supreme  court  of  this  state  without  the  delay  which 
so  often  hampers  the  administration  of  justice  in  ordi- 
nary cases. 

Seventh,  declares  it  unlawful  for  any  firm,  corpora- 
tion or  association  of  persons  to  delay  or  suspend  the 
production  or  transportation  of  the  necessaries  of  life 
except  upon  application  to  and  by  order  of  such  tri- 
bunal. 

Eighth,  makes  it  unlawful  for  any  person,  firm,  or 
corporation  to  discharge  or  discriminate  against  any 
employee  because  of  the  participation  of  such  employee 
in  any  proceedings  before  said  tribunal. 

Ninth,  makes  it  unlawful  for  any  person,  firm  or 
corporation  engaged  in  said  lines  of  industry  to  cease 
operations  for  the  purpose  of  limiting  production,  to 
aflfect  price,  or  to  avoid  any  of  the  provisions  of  this 
act,  but  also  provides  a  proper  means  by  which  proper 
rules  and  regulations  may  be  formulated  by  said  tri- 
bunal providing  for  the  operation  of  such  industries 
as  may  be  affected  by  change  in  season,  market  condi- 
tion, or  other  reason  or  cause  inherent  in  the  nature 
of  the  business. 

Tenth,  declares  it  unlawful  for  any  person,  firm  or 
corporation  or  for  any  other  association  of  persons  to 


Making  of  Industrial  Court        45 

violate  any  of  the  provisions  of  the  act,  or  to  conspire 
or  confederate  with  any  others  to  violate  any  of  the 
provisions  of  the  act,  or  to  intimidate  any  person,  firm 
or  corporation  engaged  in  such  industries  with  the  in- 
tent to  hinder,  delay  or  suspend  the  operation  of  such 
industries,  and  thus  to  hinder,  delay  or  suspend  the 
production  or  transportation  of  the  necessaries  of  life. 

Eleventh,  provides  penalties  by  fine  or  imprisonment 
or  both  for  persons,  firms,  corporations  or  associations 
of  persons  wilfully  violating  the  provisions  of  this  act. 

Twelfth,  makes  provision  whereby  any  increase  of 
wages  granted  to  labor  by  said  tribunal  shall  take 
effect  at  the  date  of  the  beginning  of  the  investigation. 

It  is  very  seldom  indeed  that  any  law  ever 
receives  so  much  careful  consideration.  Many 
of  the  leading  lawyers  of  the  state  were  con- 
sulted in  framing  the  law,  and  after  seventeen 
days  of  deliberation  it  was  passed  with  only 
seven  votes  against  it  in  the  Lower  House  and 
only  four  against  it  in  the  Senate.  In  the  1920 
primaries  some  of  the  men  who  voted  against 
the  law  were  defeated  for  re-nomination,  and 
others  did  not  offer  for  re-nomination.  The 
Senator  from  Alexander  Howat's  own  district 
voted  against  the  bill  and  was  defeated  by  a 
candidate  from  Pittsburg  who  ran  on  a  plat- 
form that  endorsed  the  courts 

The  reader  may  wish  to  know  what  argu- 
ment was  offered  against  the  bill  and  so  we 
shall  quote  at  some  length  the  speech  of  its 


46  The  Kansas   Court 

greatest  opponent.    We  shall  also  offer  shorter 
quotations  from  those  who  spoke  for  the  bill. 

Mr.  Walsh  began  his  speech  against  the  law 
with  the  following  diplomatic  references  to  the 
Kansas  constitution: 

The  state  of  Kansas  is  the  state  of  the  American 
Union  which  more  broadly  and  specifically  delivered 
an  invitation  of  this  kind  in  its  constitution  than  any 
other  state.  For  in  the  Bill  of  Rights  contained  in 
the  opening  clauses  of  the  Constitution  of  Kansas,  the 
declaration  is  made  that  "  the  people  may  always  peace- 
ably assemble  for  the  purpose  of  petitioning  their  rep- 
resentatives concerning  their  wishes,-  and  for  the  pur- 
pose of  communicating  their  desires  to  the  govern- 
ment of  Kansas  and  any  department  thereof." 

The  following  are  some  of  the  principal  sen- 
tences and  paragraphs  in  the  argument  of  Mr. 
Walsh: 

Before  I  conclude  my  argument  I  hope  to  present  the 
thought  that  the  passage  of  this  bill  means  the  de- 
struction, the  striking  down  of  the  labor  movement 
in  Kansas,  as  it  is  known  in  the  United  States  today. 

The  struggle  has  not  been  between  those  who  have 
and  those  who  have  not,  but  let  me  mark,  if  I  can,  the 
thought  that  in  modern  social  and  industrial  civiliza- 
tion it  has  been,  and  is  today,  between  the  actual 
producers  of  the  community  and  those  who  live  off 
the  actual  producers  without  any  proper  exercise  of 
their  own. 

It  is  true  in  the  history  of  mankind,  aye,  it  comes 
from  above  that  no  human  being  can  be  trusted  with 
arbitrary  power.  I  challenge  the  whole  history  of  the 
world,    the    story    of    every   autocrat   that   has    ruled, 


Making  of  Industrial  Court        47 

that  when  he  came  to  the  point  that  nothing  was  so 
powerful,  nothing  strong  enough  to  stand  in  his  way, 
he  fell  before  the  indignation  of  men  through  the  force 
of  some  humble  man. 

In  1886  many  of  us  living  in  this  country  witnessed 
one  of  the  most  terrible  strikes  that  ever  took  place  in 
the  Southwest  —  the  Southwest  Railroad  strike.  At 
that  time  I  was  clerk  in  the  general  offices  of  the 
Missouri  Pacific.  Mr.  Hoxie  was  general  manager  of 
the  Missouri  Pacific,  and  he  refused  to  hear  the  em- 
ployees who  were  struggling  to  have  a  hearing.  The 
occupation  of  a  switchman  in  those  days  was  little 
above  that  of  a  tramp.  He  got  $50  a  month,  worked 
twelve  or  fifteen  hours  per  day  and  risked  his  life 
continually.  A  gentleman  is  here  protesting  against 
this  law  who  was  a  conductor  running  out  of  Kansas. 
He  can  recall  the  day  when  his  salary  was  $50  a  month. 
You  will  recall  during  those  same  days  —  for  those  were 
the  days  before  these  so-called  powerful  unions  came 
into  existence  —  that  the  typographical  union  was  strug- 
gling for  recognition  against  the  powerful  press  of  this 
country,  the  chief  strikes  being  against  the  Kansas  City 
papers  and  against  the  St.  Louis  Post  Dispatch.  They 
were  making  demands  upon  their  employers  who  de- 
clared that  they  would  operate  their  own  business  in 
their  own  way.  The  employers  refused  to  meet  the 
men  and  the  strike  came  on.  In  the  great  railroad 
strike  property  was  destroyed  and  lives  were  lost. 
Timorous  men  believed  that  the  structure  of  govern- 
ment was  really  threatened.  So  far  as  those  men  were 
concerned  they  were  too  weak.  They  were  defeated, 
so  far  as  the  management  was  concerned  at  a  great 
cost.  Some  of  them,  good  men,  were  blacklisted  by 
every  railroad  all  over  the  United  States.  Stockholders 
lost  millions  of  dollars  and  the  executive  management 
of  the  road  was  disintegrated.    The  strike  was  a  great 


48 


The   Kansas   Court 


loss  to  the  men  and  a  great  loss  to  the  state  of 
Missouri. 

But  let  us  see.  Since  that  day  there  has  been  no 
railroad  representative  who  has  refused  to  meet  any 
regularly  accredited  committee  of  a  regularly  organized 
union.  Those  men,  those  pioneers,  were  enabled  by 
that  struggle  to  gain  a  hearing  in  the  Supreme  Court 
of  Industry,  and  so,  while  they  have  not  gained  all 
that  they  believe  they  should  have,  the  pay  of  switch- 
men, of  conductors,  of  engineers  has  been  advanced 
until  those  men  can  take  their  places  as  citizens. 

The  American  labor  movement  is  the  one  body  in 
the  United  States  that  acts,  not  only  in  its  own  organ- 
ization, but  also  in  relation  to  the  public  and  the  state 
with  the  greatest  degree  of  altruism.  Within  their  own 
organization  they  are  banded  together  so  that  they  will 
have  a  better  life.  I  find  them  side  by  side,  not  only 
giving  up  their  time  but  also  their  substance  to  the  com- 
munity, not  only  to  raise  their  families  but  also  to  per- 
form those  duties  without  which  the  state  must  languish 
and  die ;  so  that  these  men,  who  at  the  time  of  the 
Southwestern  strike,  deplorable  as  it  was,  were  little 
above  the  status  of  slaves  because  they  were  held  down 
by  economic  necessity,  are  now  able  to  establish  decent 
homes. 

The  proposed  bill  is  not  a  new  one.  It  was  presented 
time  and  again  by  the  legislative  bodies  of  this  country 
and  the  legislative  bodies  of  Europe.  That  it  con- 
tains within  its  four  corners  all  of  the  vice  without 
any  of  the  virtue  of  compulsory  arbitration,  is  my 
firm  conviction.  Its  object  is  desirable,  the  public  wel- 
fare, the  continuance  of  occupation,  etc.  But  when  we 
go  to  the  modus  operandi  for  carrying  out  that  opera- 
tion, it  is  absolutely  lacking  in  this  bill,  and  in  its 
essence  this  bill  is  a  blow  at  every  producer  in  this 
state  and  at  every  person  dependent  upon  them. 


Making  of  Industrial  Court        49 

I  believe  that  in  its  essence  it  is  unconstitutional. 
The  thirteenth  amendment  to  the  Constitution  of  the 
United  States  provides  that  "  neither  slavery  nor  invol- 
untary servitude  shall  exist  except  in  case  of  crime 
whereof  the  party  shall  have  been  duly  convicted." 
In  passing  upon  this  amendment  the  Supreme  Court 
said: 

"  The  inciting  cause  of  the  thirteenth  amendment  was 
the  emancipation  of  the  colored  race,  but  its  aim  was 
the  denunciation  of  the  condition  and  not  simply  a 
favor  to  a  certain  race  of  people." 

And  as  I  look  for  an  interpretation  of  the  term  in- 
voluntary servitude,  I  cannot  do  better  than  to  epitomize 
a  decision  by  the  Supreme  Court  of  the  United  States : 

"Involuntary  servitude  is  any  control  by  which  the 
personal  service  of  a  human  being  is  disposed  of  or 
coerced  for  the  benefit  of  another." 

This  does  not  mean  that  the  man  must  be  absolutely 
under  servitude,  so  a  master  can  say  to  him,  "  You 
shall  not  leave  here,"  or  "  You  must  leave  here,"  but 
it  is  any  control  by  which  the  personal  services  are  dis- 
posed of,  of  course,  without  his  will,  meaning  not  by 
the  lash  of  the  whip,  but  coerced  by  the  operation  of 
the  state,  whether  coerced  by  a  majority  or  by  a  mi- 
nority. 

The  beginning  of  all  genuine  liberty  starts  with  the 
liberation  of  the  producer,  giving  the  actual  producer 
the  opportunity  to  get  the  fruits  of  his  own  toil  to  the 
greatest  possible  extent  compatible  with  the  organiza- 
tion of  society. 

The  bill  proposed  here  is  couched  in  language  that 
at  first  blush,  because  so  much  is  given  to  the  object  of 
the  bill,  leads  the  average  person  to  think  that  perhaps 
there  must  be  merit  in  the  bill.  When  I  came  to 
analyze  it  in  all  its  provisions,  and  I  can  speak  here 
now  not  only  in  the  representations  which  I  hold  here, 


50  The  Kansas   Court 

but  also  as  an  investor  in  your  state  —  I  can  also  speak 
as  a  man  of  family — from  that  standpoint  I  can  say 
this  bill,  from  the  conception  which  I  have  of  American 
citizenship  and  the  progress  of  our  people,  is  abso- 
lutely at  war  with  our  spirit. 

I  believe  in  the  greatest  expression  of  individualism. 
I  believe  that  those  things  which  the  absolute  necessity 
of  the  community  demands  should  be  operated  by  the 
state,  or  by  the  municipality,  but  that  every  possible 
freedom  should  be  given  to  human  freedom  and  human 
ingenuity  and  human  activity,  and  that  goes  to  the 
very  heart  of  this  question  which  I  am  trying  to  discuss 
here  today.  You  cannot  look  upon  the  labor  of  a 
human  being  as  a  commodity.  You  cannot  look  upon 
it  as  being  subject  to  contract,  such  as  capital  is,  or 
such  as  the  fruits  of  labor,  for  the  fruits  of  labor  are 
dead  material;  but  you  must  look  at  it  as  human 
life.  You  cannot  barter  away  or  contract  for  the 
creative  impulse ;  you  cannot  contract  or  barter  away 
the  aspiration  that  a  man  has  for  contact  with  his 
own  family;  you  cannot  contract  for  life,  the  laughter 
and  the  tears,  the  joys  and  the  sorrows  of  human 
beings,  or  the  efforts  of  human  beings  to  make  the 
world  more  beautiful  and  to  advance  the  race. 

In  order  to  continue  production  this  Industrial  Court 
which  it  is  proposed  to  have  appointed  by  the  Gov- 
ernor of  this  state  is  empowered  to  fix  rules,  regula- 
tions and  practices  to  govern  the  operation  of  industry. 
I  say  it  to  you,  gentlemen,  and  I  say  it  deliberately,  it 
is  in  Section  i6 : 

"  After  notice  to  all  interested  parties,  and  investiga- 
tion, as  herein  provided,  to  make  orders  fixing  rules, 
regulations  and  practices,  to  govern  the  operation  of 
such  industries,  employments,  utilities  or  common  car- 
riers, for  the  purpose  of  securing  the  best  service  to 
the  public  consistent  with  the  rights  of  employers  and 


Making  of  Industrial  Court        51 

employees  engaged  in  such  industries,  employments, 
utilities  or  common  carriers.  " 

They  have  the  right  then  under  Section  16  to  order 
and  fix  rules,  regulations  and  practices,  to  govern  the 
operation  of  industry. 

Now  this  is  no  new  idea.  I  am  going  to  lay  this 
thing  down  as  a  fundamental  proposition  on  Section 
16,  and  I  challenge  an  investigation  of  the  operation 
of  such  law  in  Germany  and  other  places  where  it  has 
been  tried,  and  in  the  researches  of  students  through- 
out all  history,  if  that  is  not  state  socialism  in  its  most 
odious  form,  and  it  is  not  the  first  time  it  has  been 
tried.  It  is  the  idea  that  the  state,  in  order  to  con- 
serve the  public  welfare,  may  take  charge  of  the  actual 
operations  and  activities  in  production  and  industry  and 
operate  them  itself. 

All  the  great  strikes  in  history  where  there  has  been 
loss  of  life  and  property  have  been  those  where  men, 
like  in  Youngstown,  Ohio,  lived  under  conditions  so 
horrible,  and  like  the  men  did  in  Chicago,  where 
without  leadership,  without  thought,  they  struggled  to 
one  place  and  they  voiced  their  feeling  of  awful 
suffering  and  degradation,  without  proper  leadership 
and  unadvised,  many  of  them  unfamiliar  with  our  in- 
stitutions, they  rose  up;  and  it  cost  the  loss  of  life  and 
property  in  their  efforts  to  get  together  so  that  they 
might  be  heard. 

I  say  to  you,  gentlemen  of  this  assembly,  with  all 
the  feeling  that  I  am  able  to  muster,  that  there  would 
not  have  been  an  industrial  dispute  worthy  of  the 
name  in  this  country  causing  the  loss  of  life  or  prop- 
erty, if  men  recognized  the  rights  of  each  other;  recog- 
nized that  there  could  be  no  mastery  in  industry  if  the 
cooperative  process  was  employed ;  recognized  that  if  the 
employer  was  not  just  he  would  suffer  and  that  if  the 
men    did    not   keep    continuously    in    employment    their 


52  The   Kansas   Court 

families  would  suffer ;  because  they  would  have  no  em- 
ployment. And  if  the  employer,  exercising  as  he  does 
in  every  state  in  the  union,  the  free  right  of  collective 
bargaining,  had  recognized  the  right  of  the  men  to 
organize  and  bargain  through  their  representatives,  with 
the  idea  that  there  was  no  mastery,  but  that  there  was 
cooperation  —  the  country  would  have  gone  on,  genera- 
tion after  generation,  without  any  labor  dispute. 

Is  it  desirable  to  have  labor  unions?  If  it  is,  do  not 
pass  this  law,  because  by  passing  it  you  strike  down 
every  labor  union  in  the  state  of  Kansas,  and  you 
draw  a  steel  ring  around  your  borders  which  says  that 
labor  unions  cannot  come  in.  The  object  that  you  give 
for  Section  17  is  a  good  object;  that  production  shall 
not  be  hindered  or  delayed,  that  the  public  shall  not 
be  made  to  suffer  on  that  account;  and  therefore  certain 
things  are  made  illegal.  Now  let  us  understand,  if 
we  may,  the  question  of  strike  or  no  strike.  The 
terminology  is  unfortunate.  The  word  strike  implies 
effort  —  violence,  but  it  is  only  the  right  of  the  in- 
dividual to  quit  work.  No  one  would  gainsay  the  right 
of  the  laborer  to  quit  work  or  to  say  to  his  brother: 
"  We  are  being  imposed  upon,  we  are  not  getting 
enough  to  eat,  we  are  building  up  an  immense  fortune 
for  this  man,  we  do  not  ask  much  but  we  shall  ask 
a  minimum  wage,"  no  man  could  object  to  that. 

I  do  not  know  a  gentleman  in  this  assembly  that  does 
object  to  it.  There  is  continuous  annual  operation  in 
some  of  these  great  concerns  where  hundreds  and  thou- 
sands of  men  work  twelve  hours  per  day.  You  can- 
not believe  it  and  I  did  not  until  I  was  brought  face 
to  face  with  it.  Do  these  men  not  feel  imposed  upon 
when  they  see  their  children  and  their  wives  and  their 
fellow  workers  suffering?  They  will  say  to  one  an- 
other :  "  This  concern  made  a  profit  during  the  war 
of  five  hundred  per  cent  and  here  we  are  suffering 
with  want,  let  us  meet  and  present  our  complaints." 


Making  of  Industrial  Court        53 

Would    any   man    in   this    assembly   deny   them    that 
right? 

At  the  conclusion  of  Mr.  Walsh's  speech  the 
members  of  the  legislature  asked  him  many 
questions  in  a  kindly  way  that  manifested  re- 
spectful interest  and  open-minded  fairness. 
Mr.  Walsh  was  given  an  entire  day  for  his 
speech  and  the  discussion  which  he  led,  and 
through  it  all  he  was  treated  with  deference 
and  heard  with  the  greatest  consideration. 

The  next  speaker  against  the  law  was  Mr. 
J.  I.  Sheppard,  attorney  for  the  Kansas  Fed- 
eration of  Labor.  He  has  a  kindly  appearance 
and  is  often  affectionately  called  "  Uncle 
Jake."  He  too  was  heard  with  patience  and 
open-minded  respect.  He  spoke  of  the  hard- 
ships of  labor  in  general  and  particularly  of 
the  miners.  He  pleaded  for  a  spirit  of  brother- 
hood and  the  recognition  of  the  teachings  of 
Jesus  in  our  industrial  life.  He  declared  him- 
self against  strikes  and  said  that  we  should 
find  a  substitute  for  them.  He  did  not  claim 
that  similar  legislation  had  been  attempted  in 
European  countries.  He  saw  in  the  proposed 
law  a  high  purpose  and  advocated  its  enact- 
ment without  the  penalty  clause.  He  went  so 
far  as  to  commend  the  Governor's  activities  in 
the  coal  strike. 


54  The  Kansas   Court 

The  next  speaker  after  Mr.  Sheppard  was 
Judge  W.  L.  Huggins,  one  of  the  men  who 
helped  to  frame  the  bill,  and  who  has  been, 
from  the  beginning,  the  presiding  officer  of  the 
Kansas  Court  of  Industrial  Relations.  Here- 
with are  some  of  the  extracts  from  the  report 
of  his  speech: 

With  the  first  speaker  I  was  a  little  disappointed.  I 
think  that  it  can  be  inferred  from  what  he  said  that 
he  wanted  to  praise  the  government  under  which  we 
live;  that  he  wanted  us  to  stand  by  and  support  the 
government  of  Kansas ;  that  he  believed  in  this  legis- 
lature and  in  organized  government;  and  that  his  first 
duty  as  a  citizen  was  to  the  government.  But  I  don't 
believe  that  he  said  it  as  plainly  as  I  would  like  to  have 
it  said,  because  when  asked  from  the  floor :  "  Do  you 
approve  of  the  methods  by  which  the  four  brother- 
hoods forced  the  Adamson  Law  through  Congress?" 
he  answered  that  he  did  approve  of  those  methods. 
If  you  lawyer-members  have  not  read  you  will  read 
Chief  Justice  White's  opinion  in  which  he  bases  the 
constitutionality  of  that  law  almost  wholly  upon  the 
fact  that  Congress  was  compelled  to  do  just  what  they 
did  to  prevent  a  nation-wide  strike  which  would  have 
paralyzed  industry  and  brought  suffering  to  every  home 
in  this  land.  Is  that  government  by  the  majority?  Is 
that  democracy?  Is  that  government  of  all  the  people 
by  all  the  people  for  all  the  people? 

Then  again  he  was  asked  the  question :  "  Do  you 
stand  for  the  methods  adopted  by  the  striking  miners 
in  Kansas  when  they  refused  to  respond  to  the  call 
of  the  Governor  and  refused  to  permit  coal  to  be 
produced   in    the    face   of   an   actual    shortage,    severe 


Making  of  Industrial  Court        55 

winter  weather  and  actual  suffering  ? "  And  he  said 
he  did. 

I  have  been  asked  by  several  members  of  this  legis- 
lature a  question  about  this  bill  and  I  want  to  answer 
that  question.  In  fact  that  question  concerns  a  certain 
point  in  this  bill  which  has  not  even  been  mentioned  in 
this  discussion. 

What  does  this  bill  offer  to  labor?  In  the  first 
place  it  offers  a  tribunal  before  which  labor  can  go 
with  any  grievance  which  labor  may  have  —  that  is, 
labor  in  any  of  the  industries  described,  and  when 
labor  approaches  that  tribunal  nobody  can  say,  "  Where 
is  your  bond  for  costs  ? "  The  poorest  laborer  in 
Kansas  can  walk  into  this  tribunal  with  his  pockets 
empty  as  the  poorest  man  on  earth  and  be  heard.  And 
further  than  that,  as  the  matter  proceeds,  the  state  of 
Kansas  provides  that  poor  laborer  with  expert  advice 
and  expert  assistance;  it  allows  him  to  go  wherever  it 
may  be  necessary  that  he  should  go,  to  take  every  bit 
of  evidence  that  he  wants  to  take  without  his  employ- 
ing an  attorney,  without  paying  a  dollar  for  traveling 
expenses  or  without  his  employing  expert  help  of  any 
kind.  The  state  of  Kansas  says  to  him,  "  We  will 
get  your  evidence  for  you,"  and  thereupon,  with  a 
staff  of  well  paid  and  well  chosen  experts  it  takes 
up  his  case  for  him  and  investigates  his  case  for  him 
and  develops  his  case  for  him  free  of  costs. 

Now  the  state  does  more  than  that.  When  the  mat- 
ter comes  up  for  trial  before  this  proposed  tribunal, 
the  state  arranges  matters  so  that  the  laborer  does  not 
have  to  bring  any  sort  of  a  lawyer  into  that  court. 
There  is  a  staff  engaged  by  the  state  to  develop  all 
the  facts;  and  this  bill  enjoins  this  tribunal  to  do  all 
the  things  necessary  to  develop  the  facts  and  the  truth 
of  the  case.  So  the  laborer  comes  into  court  protected 
by  this  law  and  simply  offers  his  testimony  and  sub- 


56 


The  Kansas   Court 


mits  his  case,  and  the  state  investigates  his  case  and 
secures  justice  for  him  without  cost  to  him. 

And  an  additional  thing  is  also  done  for  him.  The 
bill  provides  that  the  evidence  shall  be  taken  in  short- 
hand by  a  reporter  paid  by  the  state,  and  that  the 
record  shall  be  transcribed  in  duplicate,  one  copy  of 
which  shall  be  filed  with  the  permanent  records  of  this 
Court  and  the  other  shall  be  used  in  the  Supreme  Court 
of  the  state  of  Kansas.  So  if  the  poor  laboring  man 
concluded  that  he  has  not  received  justice  in  the  Court 
of  Industrial  Relations,  his  case  is  prepared  for  him 
and  he  goes  up  to  the  Supreme  Court — ^the  best  court 
in  the  state  of  Kansas,  and  as  good  a  court  as  any 
in  the  United  States  of  America  —  without  costs  and 
without  having  to  put  up  any  security  for  costs. 

It  is  intended  to  mean  that  any  employee  can  quit 
his  employment  at  any  time  for  a  lawful  purpose,  but 
that  if  he  conspires  and  confederates  with  others  to 
quit  it  must  be  for  a  lawful  purpose  and  not  for 
an  unlawful  purpose.  There  is  nothing  in  the  bill  that 
prevents  labor  from  holding  a  meeting  in  a  hall  to 
discuss  its  wrongs.  There  is  not  a  line  in  this  bill 
that  penalizes  a  man  for  attending  such  a  meeting.  It 
is  admitted  here  that  that  coal  strike  was  called  for 
the  purpose  of  so  afflicting  the  people  of  this  state 
that  they  would  compel  the  coal  operators  to  do  some- 
thing that  they  did  not  want  to  do.  Labor,  by  that 
coal  strike,  made  hostages  of  the  people  of  Kansas. 
Does  this  law  make  a  labor  union  unlawful  in  Kan- 
sas? I  say,  No.  Every  honest  labor  union,  every 
labor  union  that  is  composed  of  loyal,  upright  Amer- 
ican citizens  who  are  willing  to  abide  by  the  laws  of 
the  land  in  which  they  live,  may  continue  its  work. 

I  will  not  debate  with  any  man  the  question  of 
obedience  to  the  law  of  the  land.  That  is  not  debat- 
able.    Loyal,  patriotic  citizens  will  obey  the  law  from 


Making  of  Industrial  Court        57 

choice  and  the  other  kind  will  be  compelled  to  obey 
it.  All  this  talk  about  inability  to  enforce  the  law  in 
Kansas  is  nonsense,  gentlemen.  This  is  a  land  of  law 
and  order  and  when  this  law  is  enacted  it  will  be 
enforced;  and  as  the  gentleman  from  Chautauqua 
County  says :  "  If  it  is  necessary  to  enforce  it  by 
a  penalty,  the  penalty  ought  to  be  somewhere  where 
it  could  be  reached."  I  am  raising  a  family,  and  I 
am  the  oldest  son  of  a  large  family,  and  I  was  taught 
the  Golden  Rule  and  the  Ten  Commandments,  and 
the  Sermon  on  the  Mount.  I  believe  in  all  those  tilings ; 
but  in  the  same  book  that  gives  us  the  Golden  Rule 
and  the  Ten  Commandments  and  the  Sermon  on  the 
Mount  is  a  passage  which  an  old  Baptist  friend  of 
mine,  who  believes  strongly  in  immersion,  used  often 
quote  to  this  effect,  "  Whosoever  believeth  and  is  bap- 
tised shall  be  saved,  but  whosoever  believeth  not  shall 
be  damned."     That  is  the  penalty. 

This  legislature  has  always  been  fair  to  labor,  and 
I  believe  that  if  Uncle  Jake  Sheppard  had  thought  of 
it  he  would  have  told  you  so  in  his  speech.  Labor 
has  been  before  this  legislature  from  time  to  time, 
and  we  have  our  mine  inspection  laws,  our  labor  laws, 
our  safety  appliance  acts,  our  workmen's  compensa- 
tion act,  our  welfare  commission,  and  so  far  as  I 
know  no  fair  law  asked  for  by  labor  has  ever  been 
denied  to  them. 

Now  is  this  an  anti-strike  bill?  It  certainly  is  not, 
and  it  is  wrong  to  call  it  so.  At  least  it  is  not  an 
anti-strike  bill  in  the  sense  in  which  they  call  it  such. 
It  does  not  prevent  any  man  or  set  of  men  from 
leaving  their  work.  It  does  say  that  when  you  quit, 
you  quit.  When  you  quit  your  employment  you  leave 
your  job  alone.  And  when  you  quit  if  someone  else 
wants  to  come  and  work  in  the  place  that  you  left 
you  have  no  right  to  prevent  him  from  doing  it.     No 


58 


The  Kansas   Court 


man  is  required  to  work  at  any  particular  work  at 
any  particular  time  unless  he  wants  to  do  so.  The 
idea  that  the  state  of  Kansas  would  seriously  con- 
sider any  sort  of  bill  for  the  enslavement  of  any  work- 
ing man !  It  is  absurd.  You  would  have  thrown  it 
out  of  the  window  the  first  morning;  you  would  not 
have  allowed  it  to  be  read  the  second  time,  if  a 
syllable  of  it  had  hinted  at  anything  like  slavery  for 
any  working  man. 

Now  the  question  arises;  can  you  enforce  the  order 
provided  for  in  this  bill?  I  believe  that  it  can  be 
done  and  I  base  my  opinion  not  altogether  upon  ad- 
judicated cases.  I  base  it  primarily  upon  this  fact, 
and  I  believe  that  every  man  present  will  admit  that 
it  is  a  fact,  that  in  every  Anglo-Saxon  country  in 
the  world,  every  government  (this  is  an  Anglo-Saxon 
country  because  our  laws  and  institutions  are  founded 
upon  the  English  Common  Law)  every  permanent  ad- 
dition to  the  body  of  the  laws  has  grown  out  of  some 
great  public   necessity. 

In  Anglo-Saxon  countries  the  law  springs  from  the 
common  level  of  the  general  public.  In  our  country 
it  comes  from  the  bottom  and  springs  up,  and  every 
permanent  law  takes  root  in  human  necessity  as  the 
tree  takes  root  in  the  soil.  Let  me  illustrate  briefly. 
Two  hundred  and  fifty  years  ago.  Sir  Matthew  Hale, 
one  of  the  greatest  judges  of  England,  for  a  time  Lord 
Chief  Justice,  wrote  a  paragraph  concerning  public 
use  of  certain  facilities  for  meeting  men's  needs,  which 
is  as  follows:  "If  the  King  himself  (mark  he  said 
if  the  King  himself)  is  the  owner  of  a  public  wharf 
to  which  all  persons  must  come  to  unload  their  goods, 
even  the  King  shall  not  make  excessive  charges  be- 
cause the  wharf  and  the  loading  facilities  are  public 
utilities,  and  are  no  longer  to  be  regarded  as  merely 
private    property."      That    was    a    long    time    ago,    but 


Making  of  Industrial  Court        59 

that  has  been  the  law  in  every  EngHsh  speaking  coun- 
try ever  since.  It  has  never  been  abandoned.  We  have 
extended  the  principle  —  extended  it  in  Kansas  a  good 
many  years  ago  when  we  created  the  Railroad  Board; 
extended  it  when  we  created  the  Public  Utilities  Act; 
so  that  we  have  fixed  the  prices  which  the  public  must 
pay  for  these  things,  and  we  have  compelled  the  con- 
tinuance of  service;  compelled  the  railroads  to  run 
their  trains  —  to  run  continuously ;  have  not  allowed  a 
road  to  take  off  a  freight  train  to  boost  the  rates  for 
freight ;  have  forbidden  electric  light  plants  to  shut 
down  their   service. 

In  this  bill  we  are  stepping  out  a  bit  further  and 
saying  that  not  only  shall  the  railroads  be  compelled 
to  furnish  service  —  not  only  shall  the  electric  light 
company  be  compelled  to  furnish  service  —  and  the 
water  company  —  and  the  telephone  company — ^but  also 
because  of  the  very  necessities  of  the  case,  the  people 
must  also  have  food,  clothing  and  fuel.  Therefore  we 
say  to  the  concerns  that  furnish  these  necessities,  "  You 
shall  not  cease  operations  and  let  the  people  go  hungry. 
You  shall  not  cease  operations  and  let  the  people 
freeze." 

But  what  kind  of  government  did  they  set  up  down 
in  the  mining  district  last  fall  to  induce  Frank  Walsh 
to  say :  "  My  first  duty  is  to  the  union."  I  do  not 
know  whether  he  would  admit  that  he  had  any  duty 
to  the  state  —  he  said :  "  My  first  duty  is  to  the  union." 
In  principle  that  is  Bolshevism,  and  I  am  not  afraid 
to  call  it  by  its  right  name.  What  is  the  matter  with 
radical  labor?  The  radical  leaders  have  tainted  it  with 
Bolshevism.  Ideas  from  Russia  have  got  into  the 
radical  element  of  labor  while  the  loyal  element  of 
labor  remains  inarticulate. 

Everybody  claims  to  be  the  friend  of  labor.  I  am 
not  going  to  parade  myself  as  a  special  friend  of  labor. 


6o  The  Kansas   Court 

Nevertheless  I  am  a  sincere  friend,  and  as  such  I  want 
to  offer  a  little  advice  to  labor.  Put  out  the  radicals, 
and  if  you  can't  do  that,  then  come  out  from  among 
them. 

Here  is  a  bill  that  attempts  to  remedy  a  great  abuse. 
Now  I  am  not  going  to  tell  you  that  it  will  bring 
about  the  millennium,  but  if  this  bill  becomes  a  law  it 
puts  into  effect  the  very  best  force  that  the  state  can 
furnish,  free  of  cost  to  the  laboring  man,  to  investi- 
gate and  adjudicate  all  those  wrongs  from  which  he 
has  been  suffering  these  many  years — ^a  bill  which 
provides  for  the  very  thing  that  Uncle  Jake  Sheppard 
and  Frank  Walsh  were  talking  about,  and  which  they 
hoped  to  have  brought  about  by  arbitration  and  con- 
ciliation within  the  industry.  There  is  not  a  line,  a 
word  or  a  syllable  in  this  bill  to  prevent  laborers  from 
getting  together  like  Uncle  Jake  told  you  about  this 
morning.  I  do  not  know  why  he  told  you  that,  unless 
he  was  preaching  a  sermon,  for  it  has  nothing  to  do 
with  this  bill.  There  is  nothing  in  this  bill  to  prevent 
labor  and  the  employer  from  getting  together  on  any 
sort  of  agreement  that  they  want  to  make.  And  in  fact 
there  is  a  strong  urge  in  this  bill  to  induce  them  to 
get  together.  You  lawyers  know  how  many  disputes 
are  settled  out  of  court  because  the  parties  do  not  want 
to  pay  a  lawyer.  In  fact,  I  never  found  anybody  who 
did  want  to  pay  a  lawyer.  People  in  general  do  not 
want  to  get  into  court  to  waste  money  on  litigation 
and  so  they  get  together  and  settle  their  differences. 

When  a  dispute  comes  up  between  employers  and 
employees  in  some  of  these  industries,  there  are  mighty 
good  reasons  why  the  employers  do  not  Vt^ant  to  go 
into  this  court,  because  every  book  and  letter  file  will 
become  objects  of  inspection  and  made  a  matter  of 
public  record.  Now  if  employers  have  anything  that 
they  do  not  want  the  public  to  know  they  will  get  to- 


Making  of  Industrial  Court        6l 

gether  with  labor  and  come  to  an  agreement,  because 
they  will  not  want  a  hearing  before  this  court.  So  to 
avoid  litigation  they  will  agree  upon  a  manner  of  the 
adjustment  of  differences. 

They  will  appoint  their  working  committees,  and 
thus,  without  any  litigation,  labor  will  get  its  rights 
and  capital  will  go  on  producing  the  goods  that  are 
necessary  for  human  life  and  all  will  go  smoothly. 
Without  the  court  there  is  no  such  motive  for  com- 
promise and  conciliation.  So  I  say  that  this  law,  while 
it  will  not  produce  the  millennium,  will  encourage  all 
those  methods  of  arbitration  and  agreement  which  have 
been  advocated  by  Mr.  Walsh  and  the  eloquent  speaker 
this  morning. 

You  have  no  right  to  take  away  the  laboring  man's 
right  to  strike  unless  you  give  him  a  better  remedy. 
You  have  no  right  to  take  away  the  laboring  man's 
only  weapon  unless  you  give  him  a  better  one. 

For  a  while  I  lived  in  a  community  in  which  it  was 
necessary  to  carry  a  revolver.  I  did  not  like  it  very 
well,  but  I  carried  one  because  the  law  did  not  pro- 
tect me.  It  was  down  in  Mexico  where'  they  had  no 
law.  Now  here  in  Kansas  we  have  passed  a  law  for- 
bidding the  carrying  of  concealed  weapons  because  we 
have  provided  better  protection  in  our  courts.  Because 
we  have  never  given  labor  a  better  protection  we  have 
allowed  labor  to  carry  a  gun  —  the  right  to  strike  — 
and  do  not  take  it  away  until  you  give  him  something 
better.  Now  you  are  offering  labor  a  better  weapon 
which  makes  the  old  one  unnecessary.  You  are  offer- 
ing labor  a  legal  tribunal  composed  of  impartial  judges, 
and  all  the  machinery  necessary  to  insure  free-  and 
even-handed  justice,  with  power  to  enforce  against  the 
employers  fair  wages,  fair  hours,  fair  conditions,  and 
good  moral  and  healthful  conditions  while  engaged  in 
labor.     The  bill  says  all  that  in  so  many  words. 


62  The  Kansas   Court 

And  when  you  have  given  labor  the  better  weapon, 
the  court,  and  have  given  it  the  protection  of  law, 
you  have  the  same  right  to  take  away  the  old  weapon 
of  the  strike,  that  you  had  to  take  away  from  the  in- 
dividual the  right  to  carry  concealed  weapons  when  you 
protected  him  by  law.  And  when  you  have  done  this 
you  have  gone  further  toward  the  establishment  of 
industrial  peace ;  you  have  gone  further  to  insure  labor 
a  fair  reward;  you  have  gone  further  to  insure  to 
every  laboring  man  the  right  and  the  ability  to  live 
comfortably,  educate  his  children,  and  bring  them  up 
in  good  moral  and  healthy  surroundings  than  any  other 
state  or  nation  has  ever  done  since  civilization  began. 
And  Kansas  has  again  led  the  world  in  progress. 

Any  man  who  says  my  first  duty  is  to  my  union  —  I 
owe  no  allegiance  to  the  state  of  Kansas  or  to  the 
United  States  which  I  shall  not  disregard  if  my  union 
tells  me  to  do  so  —  no  man  who  believes  in  that  is  a 
good  citizen.  No  man  who  acts  in  that  manner  should 
be  granted  the  protection  of  the  law  which  he  despises. 

William  Allen  White,  the  well-known  author 
and  newspaper  man,  spoke  for  the  public.  He 
revealed  the  wonderful  sanity  of  his  philoso- 
phy, which  is  the  greatest  good  to  the  greatest 
number  and  justice  to  all.  After  reviewing 
the  evolution  of  government  supervision  over 
private  affairs  and  private  quarrels  he  said  in 
part: 

In  ten  years  labor  unions  will  look  back  to  this 
step  of  the  Kansas  legislature  as  the  day  that  heralded 
the   emancipation    of    American   labor. 

As  civilization  grows,  it  grows  more  complex.  Civ- 
ilization  is   the   constant   enlargement   from    the   more 


Making  of  Industrial  Court        63 

simple  form  to  the  more  complicated  form,  and  it  will 
never  return  to  the  simpler  form.  Today  we  are 
taking  in  Kansas  a  step  which  must  be  taken  through- 
out the  world.  To  affect  with  public  use  all  those 
interests  which  are  concerned  with  productive  industry, 
we  are,  in  effect,  making  them  public  utilities. 

Every  age,  every  century,  and  in  these  modern  times 
every  decade,  sees  some  interest  or  business  formerly 
considered  private  business  or  private  interest  set  over 
in  the  public  interest.  Two  hundred  years  ago  when 
a  gentleman  had  a  quarrel  with  another  gentleman  it 
was  supposed  to  be  a  private  quarrel  which  should  be 
settled  under  a  private  code  called  dueling,  but  too 
many  innocent  bystanders  got  hurt  and  dueling  was 
stopped  in  the  interest  of  the  public.  Time  was  when 
a  quarrel  between  a  slave  and  his  master  was  a  pri- 
vate quarrel  and  the  master  had  private  rights  over 
his  slave.  That  was  stopped.  Time  was  when  a  man's 
money  invested  in  bank  stocks  or  in  railroads  was  con- 
sidered private  money,  and  it  was  considered  an  in- 
fringement of  private  rights  to  interfere  with  that 
money,  but  government  affected  all  moneys  invested 
in  banks  and  public  utilities  with  a  public  interest,  and 
regulated  and  controlled  that  money  in  the  interest  of 
the  public  and  took  away  personal  rights  for  the  public 
good. 

The  pirate's  right  to  rob  on  the  high  seas  was  once 
a  private  right  but  government  took  away  that  right 
for  the  public  good.  And  when  capital  and  labor  en- 
gage in  a  brawl  which  threatens  the  daily  processes  of 
civilization,  we  are  taking  away  the  right  to  that  brawl 
and  saying  that  it  must  be  settled  in  the  public  interest. 

The  public  in  establishing  wages  will  be  interested  in 
labor,  not  as  a  commodity,  but  in  the  laborer  as  a  citi- 
zen. The  public  is  interested  in  capital  chiefly  to  see 
that  capital  gets  justice;  that  it  has  a  fair  return  suf- 

6 


64  The  Kansas   Court 

ficient  to  encourage  enterprise,  which  is  our  God-given 
gift  which  distinguishes  America  from  all  the  world. 
And  by  trusting  to  the  public  —  that  is  trusting  to 
organized  society  expressed  in  government  —  capital  will 
find  a  court  of  justice  for  its  protection;  and  ten  years 
from  now  capital  will  regard  this  day  as  the  beginning 
of  a  new  era  of  security  in  its  organization.  We  are 
not  trying  to  throttle  capital  or  labor  but  to  emancipate 
them  from  their  strangle-hold  upon  each  other  and  to 
establish  an  equitable  and  just  living  relation  between 
them. 

One  hears  the  question :  "  What  about  dis- 
putes between  employers  and  employees  en- 
gaged in  non-essential  industries  ?  "  One  of 
the  provisions  of  the  law  is,  that  these  may  by 
common  agreement  appeal  to  the  court  for  the 
settlement  of  their  controversies,  and  the  de- 
cision when  rendered  in  a  voluntary  appeal  be- 
comes binding  as  though  it  were  rendered  in 
the  case  of  an  essential  industry. 

The  critics  of  the  court  have  said  that  the 
court  should  be  chosen  by  popular  vote  rather 
than  to  be  appointed,  as  they  now  are,  by  the 
Governor.  They  say  that  it  makes  it  possible 
for  the  Governor  to  use  this  power  as  a  means 
of  building  up  a  machine  and  of  favoring  his 
partisan  supporters  at  the  expense  of  his  ene- 
mies or  at  the  expense  of  the  state.  While  such 
a  thing  is  possible,  all  instrumentalities  of  gov- 
ernment  may  possibly  be   turned   to  private 


Making  of  Industrial  Court        65 

account  by  unscrupulous  officials.  It  is  the 
duty  of  watchful  good  citizens  to  see  that  gov- 
ernment is  not  so  perverted.  All  are  satisfied 
with  our  present  constitutional  plan  whereby 
the  President  of  the  United  States  appoints  his 
cabinet,  because  we  expect  to  hold  the  Presi- 
dent responsible  for  the  success  of  his  admin- 
istration; and  so  the  Governor,  if  he  is  to  be 
held  responsible  for  the  success  of  his  admin- 
istration, should  have  the  power  to  appoint  to 
some  extent  those  who  will  determine  the  suc- 
cess of  his  administration.  It  has  been  well 
determined  in  our  American  states  that  certain 
servants  of  the  state  should  be  appointed  rather 
than  elected  in  order  to  secure  men  with  special 
qualifications  for  duties  requiring  a  high  degree 
of  technical  skill. 

Certainly  the  judges  of  the  Court  ought  to 
be  most  carefully  selected  with  reference  to 
their  peculiar  fitness  for  this  very  difficult  work. 
Popular  election  is  apt  to  bring  to  the  front 
some  popular  individual  —  some  man  whose 
personality  or  work  has  made  a  popular  ap- 
peal —  but  popular  election  is  not  at  all  most 
likely  to  select  the  best  fitted  man  for  some 
position  calling  for  peculiar  skill  and  highly 
specialized  qualifications,  such  as  should  be 
found  in  the  members  of  the  Court. 


66  The  Kansas   Court 

If  the  judges  of  the  Court  were  to  be  chosen 
by  popular  election  there  is  every  probability 
that  capital  and  labor  would  wage  their  con- 
flict around  the  means  of  nomination  and  elec- 
tion. We  might  tend  to  have  a  capitalist  party 
and  a  labor  party;  or  a  miner's  party  and  a 
farmer's  party  or  other  industrial  divisions  en- 
deavoring to  detennine  the  choice  of  a  judge 
who  would  be  elected  under  some  obligation 
to  his  supporters.  The  judges  should  be  ap- 
pointed by  the  Governor  of  the  whole  people 
that  they  may  serve  the  whole  people.  Public 
sentiment  should  be  such  that  the  Governor's 
choice  for  a  place  on  the  Court  would  be  above 
suspicion  of  class  prejudice,  and  chosen  be- 
cause of  broad  sympathies,  wise  public  spirit 
and  special  fitness. 

In  Kansas  the  judges  are  appointed  with 
overlapping  terms  so  that  no  one  Governor 
can  shape  the  Court  to  his  own  will.  The  Gov- 
ernor is  responsive  to  the  will  of  all  the  people 
of  the  state  and  that  should  be  sufficient.  An- 
other safeguard  is  in  the  fact  that  an  appeal 
may  be  taken  to  the  Supreme  Court  of  the 
state,  and  that  Court  is  responsible  for  their 
decisions. 


CHAPTER  IV 

THE    COURT    AT    WORK 

THE  first  case  to  be  formally  adjudicated 
by  the  Kansas  Court  of  Industrial  Rela- 
tions was  that  concerning  the  Topeka  Edison 
Company  which  is  engaged  in  furnishing  nec- 
essary electric  current.  The  case  was  brought 
into  the  Court  by  the  International  Brother- 
hood of  Electrical  Workers.  After  investigat- 
ing the  wages  of  like  workers  elsewhere,  the 
skill  required,  the  hazard  of  the  tasks,  living 
costs,  etc.,  the  Court  granted  the  employees  an 
increase  in  wages. 

The  second  case  was  that  of  the  employees 
of  the  Joplin  and  Pittsburg  Railway  Company 
who  were  granted  an  increase  after  investiga- 
tion. In  the  third  case  the  Linemen  of  the 
J.  and  P.  Railway  were  granted  an  increase 
after  full  investigation. 

Then  came  the  case  of  the  Train  Dispatch- 
ers who  were  not  granted  increase.  The  next 
three  cases  were  :  The  Foremen  of  Trackmen, 
The  Substation  Operators,  and  The  Track- 
men, all  of  whom  were  granted  increases  in 
wages. 

67 


68  The   Kansas   Court 

Next  was  the  case  of  Vandenburg  et  al 
versus  Wichita  Railway  and  Light  Company, 
affecting  a  large  number  of  street  railway 
employees.  After  the  usual  investigation  of 
all  the  factors  involved,  an  increase  in  wages 
was  granted. 

In  the  next  case,  A.  G.  Weide  et  al  versus 
Kansas  Flour  Mills  Co.,  at  Great  Bend,  the 
Court  issued  findings  and  rulings  on  the 
working  conditions.  In  all  these  cases  the  rul- 
ings of  the  Court  were  accepted  by  both  parties. 

After  investigation,  increased  wages  were 
allowed  to  the  employees  of  the  Topeka  Rail- 
way Company.  Also  an  increase  in  wages  was 
ordered  in  the  case  of  E.  H.  Sowers  versus 
Atchison  Railway  Light  and  Power  Co.  A. 
H.  Martin  et  al  versus  Santa  Fe  and  Union 
Pacific  Railway  companies,  was  dismissed  on 
account  of  Federal  Labor  Board  award.  J. 
W.  Arendt  et  al.,  Goodland,  versus  Rock  Island 
Railway,  resulted  in  working  conditions  being 
improved  by  agreement  of  the  parties. 

In  this  last  mentioned  case  the  settlement 
remedied  a  condition  of  thirteen  years'  stand- 
ing. The  case  concerned  some  Rock  Island 
car  shops  at  Goodland  that  have  stood  open 
for  thirteen  years,  thus  exposing  the  workers 
to  cold  and  inclement  weather.     The  attention 


The  Court  at  Work  69 

of  the  United  States  Railroad  Commission  was 
called  to  it  without  remedy.  A  defect  in  the 
old  law  concerning  such  cases  made  it  im- 
possible to  secure  a  remedy.  In  the  summer 
of  1920,  the  Industrial  Court  ordered  that  the 
shops  be  enclosed  as  a  protection  to  the  workers 
and  they  have  since  been  enclosed. 

One  case,  to  which  many  references  have 
been  made,  is  that  of  the  Stationary  Firemen 
and  Oilers.  The  opinion,  filed  June  15,  1920, 
contains  some  interesting  materials.  The 
Court  found  that  some  of  the  workers  were 
not  getting  a  wage  large  enough  to  support 
their  families.  In  view  of  a  possible  conflict 
with  the  Federal  Transportation  Act  of  1920, 
the  order  of  the  Court  was  made  temporary 
in  its  nature  and  only  meant  to  be  enforceable 
until  the  parties  may  agree,  and  is  provided 
for  the  protection  of  the  general  public  against 
the  inconvenience  and  hardships  that  may  re- 
sult from  industrial  warfare.  The  decision,  a 
part  of  which  is  hereafter  quoted,  shows  how 
the  Court  met  the  emergency  and  provided 
for  the  protection  of  the  public  from  impend- 
ing suffering  such  as  would  have  resulted  from 
the  suspension  of  services. 

The  following  is  quoted  from  the  decision: 
From    the    evidence    in    this    case    it    seems    to   the 


70  The  Kansas   Court 

Court  plain  that  there  is  a  material  controversy,  and 
that  there  is  danger  that  such  controversy  may  termi- 
nate in  a  cessation  of  work  on  the  part  of  a  large  num- 
ber of  complainants,  which  cessation  might  result  very 
seriously  to  the  public.  It  is  argued  that  the  men  will 
not  strike  because  the  Kansas  law  makes  the  strike 
unlawful.  Nevertheless,  the  Kansas  law  recognizes  the 
right  of  these  men  to  quit  their  employment  at  any 
time,  and  the  situation  is  such  that  large  numbers  may 
become  disgusted  with  their  wages  and  the  conditions 
under  which  they  work,  and  be  justified  in  quitting  at 
any  time.  These  men  are  required  to  work  seven  days 
in  the  week  in  order  to  earn  sufficient  wages  to  sup- 
port their  families  even  scantily.  The  evidence  shows 
a  state  of  facts  which  would  unquestionably  warrant 
this  Court  in  taking  jurisdiction  in  order  to  preserve 
the  public  peace,  protect  the  public  health,  and  pro- 
mote the  general  welfare. 

For  the  purpose  of  improving  housing  con- 
ditions and  promoting  other  measures  for  the 
welfare  of  workers,  the  Court  has  made  sur- 
veys of  some  of  the  principal  industrial  centers 
of  the  state.  In  pursuance  of  the  law  under 
which  it  was  created,  and  supported  by  public 
sentiment,  the  Court  is  doing  good  things  for 
laborers,  and  for  the  public;  and  is  planning 
to  continue  doing  good  things  in  the  future, 
both  for  laborers  and  for  the  public. 

Governor  Allen  gives  a  vivid  picture  which 
illustrates  how  the  Court  secures  justice  for 
those  who  cannot  secure  justice  for  them- 
selves. 


The  Court  at  Work  71 

A  man  with  a  peg  leg,  dressed  in  faded  and  greasy 
blue  overalls,  stood  before  the  Kansas  Industrial  Court 
one  day  in  the  summer  of  1920.  He  was  a  plaintiff 
in  the  case  of  the  Stationary  Firemen  and  Oilers,  and 
his  duties  were  those  of  tender  at  a  turntable.  He  had 
a  wife  and  six  children,  he  said,  and  had  been  getting 
$97  a  month  —  equivalent  to  about  $45  a  month  before 
the  war.  It  seemed  that  the  railroad  brotherhoods  had 
not  included  him  or  his  union  in  any  of  their  efforts 
to  secure  higher  wages  or  better  working  conditions. 
He  testified  that  he  worked  seven  days  a  week  and 
that  when  he  came  home  at  night  he  would  help  his 
wife  do  the  washing  which  they  solicited  to  help  keep 
starvation  away.  Upon  close  questioning  he  told  some 
other  startling  facts.  It  was  not  unusual,  he  said,  for 
him  to  take  home  a  large  part  of  his  noonday  lunch 
which  his  wife  had  put  up  for  him,  and  put  it  back 
surreptitiously  with  the  other  food  at  night  so  that 
the  children  might  have  enough.  And  then  he  would 
start  in  at  nightfall  and  help  get  out  a  washing.  This 
laborer  was  given  an  increase  of  more  than  thirty 
per  cent.  He  belonged  to  a  large  and  important  class 
of  railway  labor  for  which  the  four  brotherhoods  have 
done  nothing. 

The  presiding  judge  of  the  Industrial  Court  told 
these  things,  among  other  incidents  of  the  kind,  to  a 
friend  one  day,  who  got  up  from  his  chair  and  paced 
back  and  forth.  Once  his  voice  stopped  and  he  went 
over  to  ti.e  window  and  stood  for  a  long  time  saying 
nothing.  He  is  rather  phlegmatic  —  some  call  him  cold 
and  some  say  that  he  is  partial  to  corporations.  Sud- 
denly he  turned  and  almost  shouted  as  men  do  when 
they  wish  to  conceal  their  emotions :  "  This  is  more 
than  a  law;  it's  more  like  gospel.  If  the  people  would 
only  understand  it.  Why,  this  is  more  than  safety  to 
the  public.  It  means  justice  in  such  matters,  to  a  man 
who  has  never  had  a  chance  to  get  justice  before." 


72  The  Kansas   Court 

That  conservative  elements  of  organized 
labor  understand  and  approve  the  Court  is 
shown  by  the  fact  that  during  the  first  few 
months  of  its  operation  about  fifteen  petitions 
were  filed  with  the  Court  by  members  of  union 
labor  in  various  industries,  mining,  milling, 
packing,  and  power  industries.  Three-fourths 
of  these  petitions  were  investigated  and  dis- 
posed of  before  August  i,  1920. 

In  at  least  twelve  cases  involving  wages,  the 
decisions  of  the  court  have  increased  wages, 
and  all  the  decisions  but  one  have  been  ac- 
cepted with  sympathetic  cooperation  on  the 
part  of  both  the  laborers  and  the  employers. 

The  one  exception  is  that  of  the  Stationary 
Firemen  and  Oilers,  in  which  case  the  Court 
awarded  an  increase  in  wages  of  approximately 
thirty  per  cent,  and  allowed  the  men  time-and- 
a-half  for  Sunday  work.  The  employing  rail- 
way appealed  from  the  decision  of  the  Court 
in  this  case  on  the  ground  that  the  federal 
government  had  established  the  Federal  Wage 
Board  for  railway  crafts,  and  that  the  Kansas 
Court  had  no  jurisdiction.  When  the  Federal 
Wage  Board  rendered  its  decision  affecting 
wages  in  this  case,  its  award  in  wages  was 
almost  the  same  as  that  of  the  Kansas  Court, 
being  only  about  three  per  cent  less,  and  the 


The  Court  at  Work  73 

Federal  Board  gave  no  recognition  of  the  claim 
for  a  larger  wage  for  Sunday  employment. 
Mr.  H.  W.  Wendele,  who  is  one  of  the  vice- 
presidents  for  the  International  Brotherhood 
of  Firemen  and  Oilers  and  also  vice-president 
for  Kansas  of  the  American  Federation  of 
Labor,  was  the  man  who  brought  this  case  into 
the  Court,  and  he  afterward  made  a  public 
statement  in  which  he  said  that  he  regarded  the 
award  by  the  Kansas  Court  as  a  more  just 
recognition  of  the  rights  of  his  craft  than  the 
decision  of  the  Federal  Wage  Board. 

The  case  for  the  members  of  the  Amalga- 
mated Association  of  Street  and  Electric  Rail- 
way Employees  of  America  against  the  Joplin 
and  Pittsburg  Railway  Company  was  brought 
into  the  court  by  W.  E.  Freeman  who  is  presi- 
dent of  the  Kansas  Federation  of  Labor.  The 
Court,  after  investigation,  awarded  increases 
to  the  different  lines  of  work  ranging  from 
nine  per  cent  to  thirty  per  cent,  and  these  in- 
creases Avere  paid  by  the  employers.  Both  the 
operators  and  the  workers  expressed  satisfac- 
tion with  the  award  of  the  Court.  This  case 
attracted  no  small  amount  of  favorable  atten- 
tion because  all  parties  concerned,  including 
the  public,  well  remember  that  during  the  last 
three  years  there  have  been  two  destructive 


74  The  Kansas   Court 

strikes  on  the  part  of  the  employees  of  this 
railway.  One  of  these  strikes  lasted  three 
months  and  involved  immense  loss  to  the  com- 
pany, to  the  men  and  tO'  the  commercial  inter- 
ests of  the  community,  as  well  as  causing 
serious  inconvenience  and  loss  to  the  traveling 
public. 

Judge  W.  L.  Huggins,  the  presiding  judge 
of  the  Court,  in  rendering  this  decision  ex- 
hibited the  benign  spirit  of  the  institution  in 
his  discussion  of  a  living  wage.  He  said,  in 
part: 

A  living  wage  may  be  defined  as  a  wage  which  en- 
ables the  worker  to  supply  himself,  and  those  abso- 
lutely dependent  upon  him,  with  sufficient  food  to 
maintain  life  and  health,  with  a  shelter  from  the  in- 
clemencies of  the  weather,  with  sufficient  clothing  to 
protect  the  body  from  cold,  and  to  enable  persons  to 
mingle  among  their  fellows  in  such  ways  as  may  be 
necessary  for  the  preservation  of  life.  But  it  is  not 
merely  a  living  wage  only  which  this  Court  is  com- 
manded by  the  people  of  this  state  to  assure  workers 
engaged  in  these  essential  industries. 

After  reviewing  the  different  lines  of  work 
recognized  in  the  verdict  and  endeavoring  to 
evaluate  their  services  the  Judge  continued : 

Such  persons,  in  all  fairness,  are  entitled  to  a  wage 
which  will  enable  them  to  procure  for  themselves  and 
their  families  all  the  necessaries  and  a  reasonable  share 
of  the  comforts  of  life.     They  are  entitled  to  a  wage 


The  Court  at  Work  75 

which  will  enable  them,  by  industry  and  economy,  not 
only  to  supply  themselves  with  reasonable  opportunities 
for  intellectual  advancement  and  reasonable  recreation, 
but  also  to  enable  the  parents,  working  together,  to 
furnish  to  the  children  ample  opportunities  for  in- 
tellectual and  moral  advancement,  for  education,  and 
for  an  equal  opportunity  in  the  race  of  life.  A  fair 
wage  will  also  allow  the  frugal  man  to  provide  reason- 
ably for  sickness  and  old  age. 

The  Court  also,  in  a  similar  case,  granted  an 
increase  ranging  from  ten  to  fifteen  cents  per 
hour  to  the  employees  of  the  Topeka  Electric 
Railway.  This  case  was  also  brought  by  union 
officials  and  the  award  was  accepted  by  both 
parties. 

What  a  striking  contrast  between  these 
peaceable  and  satisfactory  adjustments  secur- 
ing increased  wages  without  loss  of  time,  in 
comparison  with  the  terrible  experience  of  the 
city  of  Denver,  where  a  devastating  strike  was 
called  causing  the  loss  of  several  lives,  and  of 
millions  of  dollars  to  the  operators,  the  em- 
ployees and  the  public. 

Since  the  Court  has  been  demonstrating  its 
usefulness,  there  has  been  apparently  a  con- 
stant increase  in  the  number  of  laboring  men 
who  give  it  their  approval.  While  certain 
labor  leaders,  herein  mentioned,  have  brought 
cases  before  the  Court  and  been  pleased  with 
the  resulting  verdicts ;  and  while  no  labor  lead- 


76  The  Kansas   Court 

ers  appear  to  be  displeased  who  have  brought 
their  cases  to  the  Court ;  it  is  nevertheless  true, 
however  strange,  that  some  other  labor  leaders 
still  violently  oppose  the  existence  of  the  Court, 
though  they  seem  to  have  no  valid  reason  for 
such  opposition.  When  they  are  invited  to  ex- 
press their  reason  for  being  hostile  to  the 
Court,  their  replies  have  too  often  been  mere 
vituperation  and  profanity.  Such  reasons  as 
they  have  voiced  will  be  given  respectful  atten- 
tion in  Chapter  vi. 

As  laborers  become  informed  they  increase 
their  confidence  in  the  Court.  This  is  shown 
in  the  coal-mining  district  of  southeast  Kansas 
where  Alexander  Howat  has  lost  some  of  his 
prestige  because  of  his  unreasoning  fight 
against  the  Court. 

After  the  Court  was  established  some  of 
the  coal  miners,  living  under  Howat's  juris- 
diction, made  an  appeal  to  the  Court  to  investi- 
gate some  of  their  complaints,  and  immediately 
Howat  called  together  his  particular  followers 
among  the  United  Miners  of  his  district,  mis- 
represented the  purpose  of  the  Court  to  them, 
and  induced  them  to  amend  the  constitution 
of  the  organization  so  as  to  provide  that  there- 
after any  miner  who  should  take  his  complaint 
to  the  Court  of  Industrial  Relations  should  be 


The  Court  at  Work  jy 

fined  $50  by  his  union  for  making  such  appeal 
to  the  Industrial  Court;  and  also  any  local 
union  or  official  who  should  make  such  appeal 
to  the  Court  should  be  fined  $500.  This  extra- 
ordinary and  most  unwise  bit  of  defiance 
Howat  was  able  to  induce  the  miners  of  his 
district  to  approve  because  a  large  majority 
of  them  are  of  foreign  nationality,  unable  to 
read  what  is  going  on  in  the  state,  and  he  had 
built  up  a  strong  prestige  among  them  by  ap- 
pealing to  prejudices  and  class  spirit. 

These  miners  had  real  grievances  which  the 
Court  would  surely  have  remedied  just  as  soon 
as  the  cases  could  be  investigated,  and  judg- 
ing from  experience,  one  is  entirely  justified 
in  saying  that  remedy  from  the  Court's  ver- 
dicts would  have  come  earlier  and  surer  than 
from  any  other  source.  Those  who  are  in  a 
position  to  express  sane  judgment  about  the 
matter  say  that  Howat  did  not  wish  the  miners 
to  get  benefits  from  the  Court,  but  wished  in- 
stead to  have  the  miners  regard  himself  as  the 
only  agency  for  the  betterment  of  their  con- 
ditions. 

This  effort  of  Howat  to  set  the  Court  at 
naught  and  annul  the  laws  of  Kansas  the  Court 
met  by  instructing  the  operators  not  to  pay, 
under  the  check-off  system,  any  of  the  fines 


78  The  Kansas   Court 

which  Howat  might  assess  under  the  new  pro- 
visions of  the  Mine  Workers'  constitution. 
Notwithstanding  Howat's  attitude  some  of  the 
miners  brought  a  case  before  the  Court  com- 
plaining against  the  operators  under  whom 
they  were  working.  Howat  was  called  and 
refused  to  testify  before  the  Court,  stating  that 
his  refusal  was  because  he  did  not  recognize 
the  legality  of  the  Court.  Thereupon  the  dis- 
trict court  of  Crawford  County  ordered  Howat 
to  testify  and  when  he  again  refused  the  dis- 
trict court  sent  him  to  the  county  jail. 

Howat  appealed  to  the  supreme  court  of  the 
state  to  test  the  constitutionality  of  the  law 
and  was  released  from  jail  on  the  appeal  bond. 
The  supreme  court  of  the  state  of  Kansas  held 
the  law  establishing  the  Industrial  Court  to 
be  constitutional  and  Howat  prepared  an 
appeal  to  the  Supreme  Court  of  the  United 
States.  Howat  threatened  to  call  a  strike  and 
the  Court  granted  an  injunction  forbidding 
him  to  do  that. 

Howat  continued  his  activities  in  defiance  of 
the  Court,  and  the  Court  was  patient,  long- 
suffering  and  kind,  but  finally,  September  30, 
1 92 1,  he  went  to  jail  at  Columbus,  Cherokee 
County,  Kansas,  rather  than  obey  the  laws  of 
Kansas  concerning  the  Industrial  Court. 


The  Court  at  Work  79 

The  Kansas  City  Times  in  an  editorial  en- 
titled, Why  Hozvat  Goes  to  Jail,  Saturday, 
October  i,  1921,  states  the  position  of  that 
widely  known  and  highly  reputable  daily  in  a 
way  that  is  in  accord  with  the  belief  of  many 
thoughtful  citizens  concerning  the  futility  and 
unwisdom  of  Howat's  viewpoint.  This  is  the 
editorial : 

Alexander  Howat  and  August  Dorchy,  president  and 
vice-president  of  the  coal  miners'  union  for  the  Kansas 
district,  went  to  jail  at  Columbus  yesterday  to  serve  a 
six  months'  sentence  rather  than  to  give  a  bond  for 
the  observance  of  the  Industrial  Court  law. 

Mr.  Howat  and  Mr.  Dorchy  may  appear  as  heroes 
in  the  eyes  of  the  radical  leaders  who  are  behind  them 
in  their  fight  against  the  laws  of  Kansas,  but  if  they 
imagine  they  are  making  an  impression  upon  the  peo- 
ple of  the  state  who  have  indorsed  the  law,  they  are 
certain  to  waste  about  six  months  of  time  which  might 
be  utilized  by  them  for  some  useful  purposes. 

Howat  and  Dorchy  are  going  to  jail  for  disobeying 
the  Industrial  Court  law  in  what  is  known  as  the  Mish- 
mash case.  The  action  they  are  taking  in  defying  the 
law  will  serve  only  to  call  attention  to  the  specific  detail 
of  the  law  which  they  violated,  and  nothing  could  be 
more  detrimental  to  their  cause.  For  the  Mishmash 
case  is  one  that  emphasizes  to  intelligent  men  the  wis- 
dom of  the  Industrial  Court  law  and  the  justification 
for  its  adoption  and  maintenance  from  the  standpoint 
of  protection  for  the  public,  against  the  unreasonable 
attitude  of  labor  and  employers  in  industrial  strife. 

The  Mishmash  case  was  one  about  which  Howat, 
representing   the   union,   and   the   organization   of   em- 


8o  The  Kansas   Court 

ployers  in  the  district  quarreled  for  three  years.  All 
that  was  involved  v^^as  the  age  of  Karl  Mishmash,  a 
minor.  The  operator  for  whom  Mishmash  worked  said 
that  Mishmash  was  not  of  the  age  agreed  upon  when 
he  was  to  draw  a  man's  wages.  The  operator  con- 
tinued to  pay  him  a  minor's  wage.  The  union  officials 
contended  that  Mishmash  was  of  age  and  entitled  to 
a  man's  wages.  All  that  was  involved  at  the  most  was 
about  $200.  After  three  years  of  dickering  back  and 
forth,  Howat  called  a  strike  of  three  hundred  men 
and  kept  them  out  of  employment  for  many  days,  losing 
to  labor  a  great  amount  of  money  to  which  the  men 
were  entitled  and  which  they  needed.  Thousands  of 
dollars  were  lost  to  the  laboring  men,  who  were  called 
upon  to  stand  the  loss,  in  order  to  enforce  a  collection 
of  $200. 

Howat  would  not  appeal  to  the  Industrial  Court,  and 
would  not  permit  Mishmash  or  any  member  of  the 
union  to  appeal  to  the  Industrial  Court  pending  the 
controversy.  When  the  strike  was  called,  it  was  in 
violation  of  the  Industrial  Court  law,  and  Howat  was 
tried  and  convicted  for  it  by  a  jury  of  his  own  neigh- 
bors. 

The  strike  called  the  attention  of  the  Industrial  Court 
to  the  Mishmash  controversy.  The  Court,  on  its  own 
motion,  made  an  investigation,  and  called  in  the  oper- 
ators and  the  Mishmash  family  as  witnesses.  After 
hearing  the  evidence  the  Court  found  for  Mishmash 
and  against  the  operators,  and  ordered  the  operator 
who  had  withheld  the  wages  to  pay  Mishmash  the 
$200,  and  to  pay  him  interest  on  the  amount  from  the 
time  the  wages  were  withheld. 

It  required  the  Court  only  three  hours  to  do  what 
Howat  and  the  operators  under  the  old  strike  system 
had  taken  three  years  to  do,  and  had  then  failed. 

Howat   would   not   permit   Mishmash   to   accept   the 


The  Court  at  Work  8i 

interest,  because  he  feared  that  woqld  be  a  recognition 
of  the  Industrial  Court.  But,  in  the  testimony  of  the 
Howat  trial  the  superintendent  of  the  mine  involved 
said :  "  We  paid  the  money  when  we  received  the  order 
from  the  Court." 

Nothing  could  more  fully  demonstrate  the  efficacy  of 
the  Industrial  Court.  Nothing  could  more  fully  justify 
the  law  than  the  Alishmash  case.  And  Mr.  Howat  and 
Mr.  Dorchy  will  not  remove  or  cloud  the  argument  for 
the  law  as  revealed  in  the  Mishmash  case,  not  even  if 
they  spend  the  winter  in  the  Cherokee  County  jail. 

One  instance  of  the  unreasonable  attitude  of 
Howat  which  will  enable  one  to  appreciate  the 
patience  of  the  Court,  is  the  case  of  a  young 
Irish-American  who  was  called  as  a  witness 
before  the  Court  in  a  hearing  concerning  a 
coal  strike  against  the  Central  Coke  and  Coal 
Company.  This  young  worker  testified  that 
the  men  were  called  out  on  a  strike  in  the  mid- 
dle of  the  summer  of  19 19,  by  Howat.  The 
man  had  a  wife  and  children  and  wished  to 
keep  at  work  to  supply  them  with  the  neces- 
sities of  life.  He  went  to  Howat  after  a 
couple  of  weeks  of  involuntary  idleness  to  ask 
what  were  the  chances  of  getting  back  to  work. 

Howat  said,  "  Well,  I  don't  know." 

The  worker  said,  "  What  did  you  call  the 
strike  for?" 

Howat  said,  "  That  is  a  long  story.  I  can't 
tell  you  now.     I'll  tell  you  sometime." 


82  The  Kansas   Court 

The  worker  narrated  that  the  strike  was 
prolonged  until  there  was  great  suffering  and 
he  never  did  learn  what  the  strike  was  called 
for,  and  it  was  not  ended  until  Judge  Ander- 
son of  Indianapolis  brought  it  to  a  close. 

Another  instance  is  that  of  Alexander 
McAlester  who  is  the  oldest  shot  firer  in  the 
Kansas  coal  fields.  His  occupation  is  very 
dangerous  and  important. 

Before  the  war  a  shot  firer  was  paid  two 
dollars  and  eighty  cents  per  day  for  firing  at 
forty  places  with  additional  pay  for  additional 
work.  During  the  war,  the  operators,  to  save 
men,  increased  the  work  without  increasing  the 
pay.  Consequently  when  the  Industrial  Court 
was  established  McAlester  was  one  of  the  first 
to  ask  for  an  increase  in  wages  for  the  shot 
firers  whom  he  represented.  After  a  brief  pre- 
liminary investigation  the  Court  set  a  date  for 
a  further  hearing  of  the  case.  When  the  time 
arrived  for  the  hearing  McAlester  appeared 
and  showed  the  Court  a  check  from  the  em- 
ployers covering  the  amount  of  his  request. 

A  case  that  furnishes  peculiar  argument  for 
the  Court  is  that  of  the  application  for  relief 
in  behalf  of  the  street  railway  employees  of 
Hutchinson.  The  case  was  brought  before  the 
Court  by  Fred  Kervis,  who  was  a  candidate 


The  Court  at  Work  83 

for  the  legislature  at  the  time  and  was  making 
his  campaign  in  opposition  to  the  Court.  His 
application  was  for  higher  wages  for  the  street 
railway  employees,  and  the  opposing  parties 
came  to  an  agreement  in  open  court.  Kervis 
stated  in  the  open  court  that  the  findings  were 
very  satisfactory  and  that  the  Court  had  shown 
great  consideration  for  him  and  his  fellow 
plaintiffs.  This  case  was  thus  decided  before 
the  election  day  arrived,  but  Kervis  continued 
in  his  campaign  of  opposition  to  the  Court  and 
was  defeated  in  the  election. 

Another  interesting  case,  which  also  shows 
the  inconsistency  of  some  who  try  to  criticise 
the  Court,  is  that  of  W.  F.  Long  from  Par- 
sons, Kansas,  who  is  one  of  the  "  outlaw  " 
switchmen  who  left  Kansas  City  after  their 
strike  in  that  place.  After  suffering  unemploy- 
ment for  some  time  he  went  to  Parsons  and 
got  a  job.  After  working  two  days  he  was 
dropped  and  the  company  gave  as  the  reason 
that  the  Railway  Brotherhood  had  demanded 
his  discharge  because  he  had  taken  part  in  an 
unauthorized  strike. 

Now  some  of  the  members  of  the  Railway 
Brotherhood  and  other  members  of  organized 
labor  have  criticized  the  Court  because,  as  they 
charge,  it  takes  away  a  man's  divine  right  to 


84  The  Kansas   Court 

quit  work.  In  this  case  it  seems  that  they 
have  denied  a  man  his  divine  right  to  quit  work 
at  his  own  will.  To  be  sure,  this  impression 
that  the  Court  denies  the  right  to  quit  work  is 
a  misunderstanding,  which  will  be  discussed 
more  fully  elsewhere  in  this  volume.  In  this 
case  it  seems  that  the  labor  leaders  denied  this 
man  his  "  divine  right  to  quit  work." 

If  the  Brotherhood  denied  to  the  "  outlaw  " 
switchmen  the  right  to  quit  work  how  can 
they  consistently  criticize  the  Court  for  the 
same  thing? 

Another  case  that  illustrates  the  extraordi- 
nary usefulness  of  the  Court,  is  that  of 
protecting  the  miners  against  being  charged 
unreasonable  rates  of  interest  for  the  advance- 
ment of  small  loans  on  the  security  of  their 
forthcoming  wages. 

The  average  period  of  these  loans  is  one 
week  and  the  rate  charged  is  usually  ten  per 
cent  regardless  of  time,  which  makes  the  actual 
interest  rate  about  five  hundred  per  cent  per 
annum.  This  service  is  quite  generally  utilized 
and  the  union  officials  had  never  been  able  to 
do  away  with  this  injustice,  but  the  Industrial 
Court  put  a  stop  to  it  within  a  few  minutes 
after  it  came  to  their  attention. 

The  unofficial  record  of  the  Court  testifies 


The  Court  at  Work  85 

to  its  usefulness.  The  Court  encourages  volun- 
tary conciliation  between  employers  and  em- 
ployees to  remedy  living  conditions  and 
working  conditions.  The  very  existence  of 
the  Court  encourages  the  parties  to  arbitrate 
and  conciliate  their  differences. 

The  Industrial  Court,  in  order  that  it  might 
be  prepared  to  do  its  work  intelligently,  makes 
surveys  of  industrial  conditions  in  those  com- 
munities where  it  is  called  to  adjudicate  dif- 
ferences. Its  survey  in  the  mining  districts  of 
Kansas  shows  the  need  of  just  such  an  institu- 
tion. 

There  a  man  must  pay  $50  to  join  the  union 
before  he  can  be  permitted  to  work  at  all.  Then 
in  addition  to  dues,  large  sums  are  collected  in 
the  form  of  fines  and  special  assessments  by 
the  union  officials.  Sometimes  union  officials 
have  been  known  to  misappropriate  large  sums 
of  money  collected  from  the  miners.  At  one 
time  $10,000  was  sent  to  help  a  socialist  news- 
paper in  Oklahoma. 

Also  large  sums  of  money  have  been  paid 
out  of  the  union  treasury  to  attorneys  who 
served  the  union  officials  but  rendered  no  serv- 
ice to  the  miners  at  all.  The  records  of  the 
United  Mine  Workers'  Union  of  Pittsburg, 
Kansas,    shows   that   an   attorney,    Redmond 


86  The  Kansas   Court 

Brennan,  drew  $18,000  for  defending  Howat 
when  Howat  went  to  jail  at  Columbus,  Kan- 
sas. Concerning  this  fee  another  attorney  said 
that  the  case  was  so  clear  that  defense  was 
useless,  that  a  high  attorney  fee  was  an  entire 
waste  of  money,  that  no  legal  talent  could 
have  altered  the  case,  and  that  Brennan's  serv- 
ices were  of  small  value  to  Howat  and  surely 
without  value  to  the  miners  who  paid  the 
$18,000  out  of  their  poverty.  Union  funds 
were  also  used  to  help  in  the  defense  of  the 
I.  W.  W. 

Of  the  ten  or  twelve  thousand  miners  in 
the  Kansas  district  about  one  thousand  are  of 
American  parentage.  Many  of  these  foreign- 
ers were,  at  some  time,  brought  in  as  strike 
breakers  and  afterward  became  unionized. 
They  represent  many  nationalities  and  have  but 
little  in  common  but  their  labor  union.  They 
live  in  small,  unattractive  rented  houses  that 
belong  to  the  company,  for  the  most  part. 
Among  many  of  them  there  has  been  but  little 
religious  or  other  welfare  work  done.  Many 
of  them  become  socialists.  The  socialist 
paper,  The  Appeal  to  Reason,  is  published 
in  Girard,  Kansas,  in  this  district.  Only  a 
few  of  the  operators  seem  to  care  at  all  for 
the  welfare  of  the  men,  judging  by  what  has 


The  Court  at  Work  87 

been  done  and  not  done  for  their  welfare. 
The  union  officials  are  autocrats,  and  in  their 
rule  have  exploited  the  miners  and  have  used 
duress  and  intimidation.  Surely  this  district 
needs  the  services  of  the  Industrial  Court. 

When  organized  labor  understands  the 
motives  and  methods  of  the  Court  it  is  friendly. 
An  illustration  of  this  fact  is  found  in  the  ex- 
pression of  Charles  W.  Fear,  editor  of  the 
Missouri  Trades  Unionist,  who  said : 

We  know  that  working  men  with  whom  we  have 
discussed  the  question  declare  the  Industrial  Court  Law 
to  be  a  move  in  the  right  direction  for  peace  in  the 
labor  world.  Why  not  give  the  newr  law  a  fair  trial 
and  have  it  amended  if  amendment  is  needed? 

Definite  good  results  from  the  work  of  the 
Court  can  be  found  in  the  Kansas  coal  field. 
Here  during  the  first  year  after  the  Court  was 
established  the  total  production  of  coal  was 
seven  million  tons  as  against  the  previous  aver- 
age of  five  and  a  half  million  tons.  After 
some  attention  from  the  Court  there  arose 
among  many  of  the  miners  a  more  contented 
atmosphere.  It  was  a  satisfaction  to  them  to 
think  that  it  was  no  longer  necessary  for  them 
to  strike,  and  starve  their  families  in  order  to 
have  their  complaints  given  a  reasonable  hear- 
ing.   And  this  improved  condition  would  have 


88  The  Kansas   Court 

been  permanent  but  for  the  gross  misrepre- 
sentations concerning  the  Court,  made  by  rad- 
ical labor  leaders  who  felt  that  the  benign 
services  of  the  Court  would  likely  loosen  some- 
what the  grip  of  their  tyranny  over  the  men 
and  check  some  forms  of  their  exploitation. 

These  misrepresentations  and  the  prejudices 
which  they  aroused  caused  some  of  the  miners 
to  quit  work  in  protest  against  the  sending  of 
Alexander  Howat  to  jail.  But  the  district 
court  could  not  avoid  sending  Howat  to  jail, 
because  he  repeatedly  defied  the  Court,  re- 
peatedly refused  to  obey  the  law  and  taunted 
the  Court  until  his  followers  boasted  that  the 
Court  would  not  dare  to  send  him  to  jail  and 
could  not  compel  him  to  obey  the  law.  How- 
ever, recently  the  men  who  quit  work  in 
protest  against  Howat's  jail  sentence  either  re- 
turned to  work  or  asked  to  have  their  places 
back,  and  have  been  refused  by  their  former 
employers. 

Outside  the  ranks  of  those  few  misled  min- 
ers, public  sentiment  is  upholding  the  Court. 

The  investigation  of  the  mining  district  re- 
vealed that  the  public  school  teachers  are  mak- 
ing Americans  out  of  the  coming  generations 
of  foreigners.  When  the  school  children  were 
asked  about  their  nationality  many  of  them 


The  Court  at  Work  89 

did  not  know,  few  of  them  manifested  any 
particular  interest  in  the  question  of  where  they 
had  come  from  or  the  nationality  of  their 
parents  but  they  all  unanimously  declared  that 
they  were  Americans  and  loyal  to  America. 
The  teachers  are  doing  faithful  work  along  all 
lines,  so  far  as  possible,  but  the  material  equip- 
ment of  the  schools  is  not  at  all  what  it  ought 
to  be,  for  the  want  of  school  revenues. 

While  an  occasional  operator  shows  some 
kindly  interest  in  the  welfare  of  the  men,  and 
while  an  occasional  union  official  is  a  safe  and 
sane  leader ;  for  the  most  part  the  miners  have 
been  ruthlessly  exploited  by  the  operators,  and 
impassioned  and  misled  by  the  demagogic 
harangues  of  shallow  agitators  who  sought 
places  as  officials  of  the  union.  Surely  there 
is  great  need  for  just  such  an  institution  as 
the  Industrial  Court. 

An  unusual  feature  of  the  law  was  tested 
in  the  case  affecting  several  of  the  flouring 
mills  in  Topeka.  The  situation  back  of  the 
bringing  of  the  case  was  that  the  price  of  wheat 
had  gone  down  below  a  dollar  and  a  half  in 
Kansas  at  the  points  of  origin  late  in  the  fall 
of  1920.  This,  the  farmers  declared,  was  be- 
low the  cost  of  production  and  they  held  back 
shipments  of  wheat  to  the  mills.    Thereupon  a 


90  The  Kansas  Court 

number  of  the  mills  in  Topeka  closed  down 
and  let  out  some  of  their  employees.  Now  it 
seems  that  they  had  not  carefully  read  the  law 
establishing  the  Industrial  Court;  for  the  law 
provides  that  any  establishment  engaged  in  the 
preparation  or  manufacture  of  food  products 
must  not  close  down  or  curtail  production  with- 
out a  hearing  before  the  Industrial  Court,  and 
permission  also  from  the  Court  to  do  so.  The 
Court  investigated  and  called  the  owners  of 
the  mills  to  appear  before  it  on  the  charge  of 
curtailing  production.  The  mill  owners  obeyed 
the  summons  and  when  the  Court  heard  the 
conditions  it  gave  the  permission  to  reduce 
output. 

The  partisan  critics  of  the  Court  repre- 
sented that  the  Kansas  flour-mills  case  was  an 
instance  of  the  Court  trying  to  compel  a  busi- 
ness to  continue  activity  at  a  loss.  This  criti- 
cism was  entirely  unfair  in  every  way.  The 
Court  had  no  purpose  at  all  to  try  to  compel 
an  enterprise  to  continue  business  at  a  loss  or 
even  without  a  reasonable  profit.  The  object 
of  the  Court  was  to  investigate  and  see  if  the 
flour-mills  were  really  threatened  with  a  loss, 
or  merely  reducing  output  to  affect  prices  in 
the  interest  of  unusual  profits.  When  the 
Court  learned  that  the  desire  of  the  flour-mills 


The  Court  at  Work  91 

to  reduce  output  was  reasonable,  the  permission 
to  do  so  was  readily  granted.  On  the  other 
hand,  one  can  see  the  harm  that  might  result 
to  the  public  if  flour-mills  were  allowed  to  close 
down  simply  to  affect  prices  and  starve  or  rob 
the  public. 

The  case  of  the  Kansas  flour-mills  was  ad- 
judicated promptly  and  without  undue  re- 
straint or  embarrassment;  and  the  advantage 
to  the  owners,  of  having  the  matter  investi- 
gated, was  that  they  were  thus  spared  unjust 
criticism  which  would  have  otherwise  resulted 
from  the  suspicion  that  they  had  reduced  out- 
put in  an  unreasonable  way  as  a  means  of 
exploitation  or  oppression.  The  speedy  adjust- 
ment of  the  case  had  a  wholesome  effect  on  all 
concerned  and  on  the  public  in  general.  No 
one  was  prejudiced  at  all  in  any  way  as  a 
result  of  the  intervention  of  the  Court;  on  the 
contrary,  everyone  felt  that  justice  had  been 
vindicated  and  that  in  the  future  no  essential 
industry  would  be  permitted  to  curtail  output 
simply  for  the  selfish  purpose  of  exploitation. 

In  this  matter  the  law  is  specific  and  just. 
It  states  that  the  employer  is  to  have  a  fair 
profit  in  production.  It  is  clear  that  the  pur- 
pose of  the  law  and  of  the  judges  of  the  Court 
is  not  to  require  a  business  to  be  continued 


92  The   Kansas   Court 

under  difficult  circumstances  unless  the  lives 
and  welfare  of  the  people  depend  upon  it.  It 
is  also  clear  that  in  the  future  organized 
selfishness  will  not  be  allowed  to  submit  the 
people  to  grave  danger  or  serious  inconven- 
ience for  the  extraordinary  enrichment  of  a 
few  predacious  promoters  of  monopolistic  en- 
terprises. It  is  simply  a  new  and  reasonable 
method  of  manifesting  the  police  power  of  the 
state  for  the  protection  of  all  the  people.  It 
is  a  necessar)^  —  absolutely  necessary  —  en- 
largement of  the  functions  of  government  to 
meet  a  new  condition  that  must  be  met  if  the 
present  form  of  social  order  is  to  survive  rather 
than  break  down  and  give  way  to  either  au- 
tocracy on  the  one  hand  or  bolshevism  on  the 
other.  The  public  cannot  permit  a  few  to 
do  as  they  please  when  the  life  of  the  public 
is  in  the  balance. 

During  the  latter  months  of  1920  and  the 
early  months  of  1921,  there  was  a  reduction 
of  prices  along  many  lines  below  the  abnor- 
mally high  prices  that  had  prevailed  during  the 
last  couple  of  years  of  the  World  War.  Going 
with  this  period  of  reduction  was  a  slacking-up 
along  many  lines  of  industry  and  men  were 
left  out  of  employment.  During  this  time  it 
was  a  common  thing  for  a  factory  to  clos.^. 


The  Court  at  Work  93 

down  for  a  few  days,  leave  the  men  out  of 
work  and  then  announce  an  opening  again  at 
a  new  scale  of  prices,  particularly  a  lower  scale 
of  wages.  Some  great  industries  that  were 
strongly  organized  shut  down  for  the  evident 
purpose  of  both  reducing  wages  and  at  the 
same  time  curtailing  output  and  holding  up 
prices  to  an  abnormal  level.  It  is  perfectly 
obvious  that  large  organizations  having  mo- 
nopolistic advantages  could  thus  secure  for 
themselves  enormous  profits  and  subject  the 
public  to  great  suffering  from  the  need  of  the 
essentials  of  comfortable  living.  Have  the 
people  any  remedy  against  such  malefactors? 
Yes.  The  Kansas  Court  of  Industrial  Rela- 
tions proposes  to  investigate  such  cases  and 
protect  the  public  against  extortion. 

To  be  sure  we  may  expect  objections,  criti- 
cisms, and  predictions  of  great  difficulties  to 
come  from  partisan  opponents  of  those  who 
happen  to  be  in  office  at  the  time,  and  from 
the  ultra-conservative  who  oppose  all  things 
that  appear  new  and  also  from  those  who  ex- 
pect to  profit  in  some  way  from  the  methods 
of  the  past.  Also  we  may  expect  support  from 
all  those  who  take  the  care  to  learn  the  true 
nature  of  the  Court  and  who  are  at  the  same 
time  concerned  to  see  the  best  possible  endeavor 


94  The  Kansas   Court 

to  administer  justice  to  all,  in  our  industrial 
rivalries. 

Some  of  those  who  are  doubtful  about  the 
success  of  the  Industrial  Court  have  said: 

The  decrees  of  the  Court  have  been  accepted  in 
good  faith  because  it  has  been  possible  for  the  Court 
to  increase  wages  in  most  of  the  instances  where  it 
has  been  called  to  make  adjustments;  but  now  that 
the  time  is  coming  when  the  Court  can  no  longer  give 
increases  in  wages  to  all  who  come  seeking  its  in- 
tervention, it  will  become  useless  or  unpopular. 

This  fear  is  unfounded  because,  the  Court 
can  protect  labor  in  times  of  depression  when 
many  men  are  out  of  work  and  capital  is 
disposed  to  exploit  labor  by  unnecessary  re- 
ductions. It  can  also  protect  the  public  when 
capital  is  disposed  to  reduce  output  in  order  to 
keep  up  the  prices.  When  men  are  out  of  work 
and  an  idle  man  stands  ready  to  take  the  job 
of  every  man  who  is  at  work,  then  the  em- 
ployer has  a  tremendous  advantage;  and  but 
for  the  intervention  of  the  Court,  labor  would 
be  almost  helpless.  Instead  of  breaking  down 
in  hard  times,  it  is  then  that  the  Court  will 
render  its  greatest  services  to  labor  and  to  the 
public,  by  means  of  restraining  the  hand  of 
organized  greed,  and  stabilizing  production  and 
the  continuity  of  services. 


CHAPTER  V 

THE    COURT    APPROVED   BY   THE   PEOPLE 
OE    KANSAS 

THE  Court  of  Industrial  Relations  in  Kan- 
sas has  now  been  in  operation  for  nearly 
two  years  and  has  been  heartily  approved  by 
a  large  majority  of  the  people  of  the  state. 
Indeed  investigation  convinces  one  that  the 
approval  is  enthusiastic  and  almost  unanimous. 
Here  in  Kansas,  as  elsewhere,  one  finds  to 
some  extent  the  regrettable  tendency  on  the 
part  of  politicians  and  their  partisan  followers 
when  not  in  power  to  try  to  find  fault  with 
all  that  is  done  by  the  party  in  power  even 
though  that  policy  leads  them  to  criticize  very 
worthy  action  in  particular  instances.  So  we 
find  here  a  few  partisans  out  of  office  who 
would,  of  course,  try  to  oppose  whatever  is 
done  by  those  who  happen  to  be  in  office. 
Nevertheless  the  Industrial  Court  is  heartily 
approved  by  many  of  the  political  opponents 
of  Governor  Allen  as  well  as  by  all  his  own 
party  followers. 

When  we  interview  one  who  does  fail  to 
approve  the  Industrial   Court  he  usually  de- 
clines to  give  any  reason  at  all  for  his  atti- 
95 


96  The  Kansas   Court 

tude,  or  if  he  attempts  to  give  a  reason  he  is 
very  apt  to  reveal  either  that  he  knows  nothing 
about  the  Court  or  that  he  has  an  immediate 
pecuniary  interest  in  those  controversies  over 
which  the  Court  has  jurisdiction,  and  he  thinks 
that  he  could  somehow  get  a  greater  advan- 
tage for  himself  through  conflict  than  through 
adjudication.  The  great  majority  of  those 
whom  we  interview  show  that  they  understand 
the  Court  in  its  origin  and  its  accomplishments, 
and  that  they  are  for  the  Court,  regardless  of 
political  party  lines. 

In  the  last  general  election  more  than  half 
a  million  voters  in  Kansas  expressed  them- 
selves with  reference  to  the  Court  and  the 
result  was  a  most  gratifying  approval.  The 
results  of  the  election  endorsed  the  Court  in 
every  county  in  the  state,  even  in  the  indus- 
trial centers.  Even  in  Crawford  county,  in 
southeast  Kansas,  in  the  center  of  the  mining 
district,  the  home  of  Alexander  Howat,  dis- 
trict president  of  the  International  Mine  Work- 
ers Union,  the  most  active  enemy  of  the  law 
establishing  the  Court,  the  entire  legislative 
ticket  in  favor  of  the  Court  were  elected; 
while  the  candidates  opposed  to  the  Court  were 
all  defeated. 

From  the  day  that  the  Court  was  estab- 


Court  Approved  by  the  People     97 

lished  certain  radical  labor  leaders  began  a 
campaign  of  misrepresentation  and  prejudice. 
They  endeavored  to  unite  against  the  state  ad- 
ministration every  dissatisfied  element,  but 
Governor  Allen  was  reelected  by  a  majority  of 
more  than  a  hundred  thousand  votes  and  car- 
ried all  but  three  of  the  one  hundred  and  five 
counties  in  the  state.  Every  legislative  candi- 
date who  opposed  the  Court  was  defeated. 
Every  member  of  the  legislature  who  had  op- 
posed the  Court  in  the  special  session  at  which 
it  was  enacted  was  left  at  home.  The  only 
republican  legislator  who  voted  against  the 
Court  was  defeated  for  reelection  by  a  demo- 
crat who  was  for  the  Court,  and  that  in  a 
republican  district  and  despite  a  republican 
landslide. 

Radical  labor  leaders  assessed  their  members 
for  large  sums  of  money  with  which  to  secure 
campaigners  against  the  Court.  Alexander 
Howat  announced  publicly  that  Farrington,  of 
the  Illinois  miners  unions,  would  send  $100,000 
into  the  state  to  defeat  the  Court. 

The  people  of  Kansas  had  two  opportuni- 
ties to  show  their  judgment  concerning  the 
Court,  first  in  the  August  primaries  and  then 
in  the  November  election.  The  result  in  each 
of  these  referendums  to  the  popular  verdict 


98  The  Kansas   Court 

was  a  complete  vindication  of  the  Court.  The 
republicans  of  the  state  had  a  chance  in  the 
primaries  to  show  if  they  endorsed  the  Court 
and  they  responded  by  nominating  a  legislative 
ticket  that  was  even  more  overwhelmingly  fa- 
vorable to  the  Court  than  had  been  the  legis- 
lature that  enacted  the  law.  And  the  people  of 
the  state  as  a  whole  have  in  former  years 
shown  a  disposition  to  vote  independently  of 
party  lines  when  such  independent  voting 
would  express  their  convictions,  so  that  it  is 
perfectly  reasonable  to  infer  that  if  the  Court 
had  not  been  approved  by  the  people  of  the 
state  the  election  would  have  gone  differently. 
There  could  be  no  mistake  about  the  general 
vindication  of  the  Court. 

Governor  Allen  was  regarded  as  the  author 
of  the  law  creating  the  Court  and  responsible 
for  its  aims  and  methods.  Consequently  the 
fight  was  centered  against  him.  He  was  ac- 
cused of  unworthy  motives.  His  friends  are 
confident  that  these  accusations  were  unjust. 
The  accusations  were  that  the  Governor  was 
merely  playing  politics  on  an  ambitious  scale 
with  the  hope  of  making  a  favorable  impres- 
sion on  the  next  National  Republican  Conven- 
tion for  the  nomination  for  President  or 
Vice-President;  and  that  he  was  merely  design- 


Court  Approved  by  the  People     99 

ing  a  court  that  would  serve  as  an  institution 
to  intimidate  the  laborers  and  prevent  strikes 
and  so  serve  the  purpose  of  capital  and  thus 
secure  the  support  of  capital  to  serve  the 
Governor's  political  ambitions. 

But  those  who  know  the  Governor  best  be- 
lieve that  his  motives  were  entirely  patriotic 
and  his  purpose  was  to  secure  justice  for  labor 
without  the  expense  of  the  strike,  and  honestly 
promote  the  welfare  of  the  state. 

During  the  campaign  before  the  election  the 
Governor  spoke  in  a  number  of  places  where 
the  agitation  and  adverse  criticism  had  been 
most  aggressive  and  persistent,  and  in  those 
places  as  elsewhere  he  was  heard  with  the 
closest  attention  and  treated  with  the  greatest 
respect  by  his  audiences. 

Thus  far  there  is  absolutely  no  evidence  that 
either  the  Governor  or  the  Court  have  had  any 
other  than  the  most  altruistic  motives,  or  that 
they  have  employed  any  but  the  best  known 
methods  in  all  that  has  been  done  in  the  ad- 
judication of  industrial  differences. 

The  author  has  interviewed  many  persons 
of  all  classes  to  get  their  opinions  concerning 
the  Court  and  has  found  but  few  critics  who 
really  seemed  both  informed  and  free  from 
bias.     In  the  large  number  interviewed,  right 


lOO  ■'  The  Kansas   Court 

here  at  the  home  of  Alexander  Howat,  the 
chief  critic  of  the  Court,  we  found  almost  none 
opposed  to  the  Court  except  those  few  who 
were  the  close  personal  adherents  of  Howat, 
and  they  generally  revealed  an  attitude  of  par- 
tisanship and  a  lack  of  information  concerning 
what  the  Court  has  done.  Notwithstanding  the 
fact  that  the  administration  of  the  state  during 
the  time  of  the  formation  of  the  Court  and 
up  to  the  present  time  has  been  republican, 
nevertheless  we  find  among  the  democrats 
many  who  are  very  loyal  to  the  Court  and  very 
impatient  with  all  those  who  oppK)se  it 


CHAPTER  VI 

THE  RIGHT  OF  THE  STATE  TO  ADJUDICATE 
INDUSTRIAL  DISPUTES 

THOSE  who  object  to  the  Industrial  Court 
say  that  the  state  has  no  right  to  fix 
wages.  They  might  be  reminded  that  the 
state  does  fix  the  wages  of  all  public  servants, 
such  as  schoolteachers,  and  postal  employees, 
and  in  many  instances,  especially  in  the  case 
of  school  men  it  is  admitted  that  the  wages 
fixed  by  the  state  are  less  than  the  individual 
might  otherwise  earn.  Also  the  critics  of  the 
Court  say  that  the  government  has  no  right 
to  say  that  a  man  shall  not  quit  work. 

The  law  creating  the  Court  does  not  say  that 
men  shall  not  quit  their  work  or  change  their 
occupation ;  and  the  Court  has  never  forbidden 
any  man  to  quit  work  or  denied  him  the  right 
to  quit  his  occupation  in  an  orderly  way;  but 
on  the  contrary  the  law  expressly  says  that 
such  right  shall  not  be  denied  to  men 

The  law  is  designed  to  promote  industrial 
peace,  secure  the  continuity  of  service,  protect 
the  public  and  prevent  one  man  or  set  of  men 
from  forbidding  other  men  to  work  when  they 

lOI 


102  The  Kansas   Court 

wish  to  work.  In  a  democracy  it  is  desirable 
that  men  should  have  as  much  freedom  as  pos- 
sible to  choose  their  occupations  and  to  change 
their  occupations.  However,  some  restrictions 
are  necessary.  A  fireman  may  not  quit  his  job 
on  the  way  to  a  dangerous  fire  without  being 
punished  for  such  treachery,  but  he  may  serve 
notice  of  his  desire  to  change  at  a  time  when 
there  is  no  imminent  danger  so  that  his  place 
may  be  filled  before  the  next  moment  of  great 
need.  A  policeman  may  not  quit  his  job  in  the 
face  of  danger  but  may  quit  at  an  appropriate 
time.  A  soldier  may  not  quit  on  the  eve  of 
battle  but  may  change  at  the  expiration  of  the 
time  of  his  enlistment  unless  he  be  drafted  for 
further  service.  If  a  schoolteacher  quits  with- 
out cause  and  at  an  inopportune  time  he  may 
find  that  he  cannot  secure  another  place  as  a 
teacher,  and  also  he  may  not  at  all  forbid  an- 
other to  take  his  place. 

For  many  years  schoolteachers,  and  others 
who  were  interested  in  education,  believed  that 
schoolteachers  were  underpaid,  but  teachers  did 
not  strike  or  even  refrain  from  work  and  try 
to  persuade  others  not  to  take  their  places ;  and 
when  they  organized  it  was  for  self-improve- 
ment that  they  might  render  the  better  service 
to  the  public.    They  depended  for  an  increase 


Right  of  State  to  Adjudicate  Disputesio^ 

in  wages  upon  the  methods  of  educating  the 
public  as  to  their  worth,  and  going  into  other 
lines  of  work  to  demonstrate  that  they  could 
earn  more  in  other  work  than  in  teaching. 

Likewise  if  a  coal  miner  feels  that  he  can 
make  more  at  some  other  occupation  it  is  his 
right  to  change  his  occupation  and  even  to  per- 
suade other  miners  to  do  likewise  until  the 
shortage  of  mine  laborers  would  cause  the  op- 
eration of  the  law  of  supply  and  demand  to 
increase  the  wages.  Likewise,  it  is  perfectly 
right  for  the  miner  to  ask  the  public  to  in- 
vestigate the  conditions  under  which  he  works, 
the  wages,  the  hardships,  the  profits  of  the 
business  and  the  rightfulness  of  his  demands 
for  better  wages.  It  is  also  right  that  the 
miner  should  organize  and  employ  the  methods 
of  collective  bargaining  and  of  bringing  to 
bear  collective  influence  along  ethical  lines  to 
secure  justice  in  his  work.  But  if  large  bodies 
of  organized  miners  strike  at  the  beginning  of 
winter,  shut  off  the  coal  supply  so  that  millions 
are  in  peril,  and  then  in  their  organized  ca- 
pacity declare  that  others  shall  not  take  their 
places  and  that  coal  shall  not  be  dug  until  their 
demands  are  met  —  that  people  may  freeze 
until  the  miners  fix  their  own  price  for  their 
work  —  then  if  these  striking  miners  picket  the 


I04  The   Kansas   Court 

mines  and  refuse  to  allow  the  mines  to  be 
worked,  the  situation  calls  for  the  interference 
of  government.  And  if  labor  is  so  underpaid 
that  such  methods  are  necessary  to  secure 
just  wages,  the  situation  calls  for  the  interfer- 
ence of  government  before  a  strike  is  neces- 
sary. 

The  strike  should  not  be  necessary;  and  if 
it  is  necessary,  then  government  is  not  per- 
forming its  full  function  of  protection  and 
justice.  If  organized  laborers  can,  by  strik- 
ing, secure  justice  they  can  also  secure  injus- 
tice. That  is  to  say,  if  by  striking, 
the  laborers  can  compel  their  reluctant  em- 
ployers to  pay  just  wages,  there  is  nothing  to 
prevent  the  same  laborers  from  also  striking  to 
secure  more  than  just  wages.  In  either  case 
it  is  an  industrial  conflict  that  will  be  decided 
in  favor  of  the  stronger  combatant.  There  is 
no  assurance  that  justice  will  be  administered. 
It  is  merely  a  test  of  contracting  strength  in 
which  the  stronger  will  win.  The  striker  may 
have  a  just  cause  and  lose;  in  which  case  it 
would  be  much  better  to  save  all  the  expense 
of  the  strike  and  submit  the  matter  to  a 
judicial  tribunal  by  which  method  nothing 
would  be  lost  and  justice  would  be  likely  to 
prevail.    If  the  organized  laborers  have  a  just 


Right  of  State  to  Adjudicate  Disputesio^ 

cause  and  have  the  fighting  strength  to  win  as 
much  as  they  should  justly  win,  then  what  is 
to  hinder  them  from  using  the  same  fighting 
strength  to  fight  again  and  win  more  than  is 
justly  theirs.  If  one  body  of  men  organize 
and  thus  secure  more  than  is  their  just  share, 
it  means  that  some  other  body  of  men  must 
get  less  than  their  share.  If  men  who  organize 
and  strike  get  more  than  those  who  do  not 
organize  and  strike,  then  all  will  be  induced 
to  organize  and  strike.  If  the  strike  can  be 
successful  there  is  great  temptation  to  repeat 
the  success  at  frequent  intervals.  This  means 
constant  struggle  and  interrupted  employment 
where  there  should  be  peace  and  constant  serv- 
ice. The  state  must  make  these  methods  un- 
necessary and  provide  a  better  means  of 
settling  differences  just  as  it  has  in  the  matter 
of  civil  disputes  and  personal  conflicts.  To  ad- 
judicate these  differences  without  cost  is  the 
work  of  the  Industrial  Court. 

The  Industrial  Court  may  not  be  always 
able  to  administer  perfect  justice;  neither  does 
the  present  method  of  conflict  secure  perfect 
justice.  The  Court  will  cost  less  to  all  con- 
cerned and  be  certain  to  come  nearer  securing 
justice  to  all  concerned  than  will  the  method 
of  conflict.     The  method   of   conflict   is   the 


io6  The  Kansas   Court 

method  of  barbarism ;  the  Court  is  the  method 
of  civilization. 

Those  parties  who  prefer  to  settle  their  con- 
troversies by  the  method  of  conflict  must  be 
taught  that  their  preferences  in  the  matter 
should  give  way  to  such  methods  as  are  best 
for  the  state,  and  that  the  individual  can  never 
have  any  right  to  employ  a  method  that  is  in- 
jurious to  the  state.  Even  though  both  parties 
to  the  industrial  conflict  should  find  their  mem- 
bership to  be  unanimous  in  their  preference 
to  settle  their  industrial  controversy  by  the 
method  of  conflict,  they  still  have  no  right  to 
do  so  because  such  method  is  not  best  for 
the  other  people  of  the  state. 

Every  individual  in  the  state  has  a  right  to 
be  considered  in  the  adjustment  of  all  con- 
troversies affecting  the  welfare  of  the  state. 
The  state  as  a  state  through  its  function  of 
government  has  a  right  to  control  any  indus- 
trial methods  among  its  citizens  when  such 
methods  affect  the  welfare  of  large  numbers 
of  citizens,  and  when  state  control  promises 
better  results  than  private  action  without  state 
control.  Because  the  methods  of  conflict  have 
been  allowed  in  the  past  is  no  reason  why  such 
methods  should  be  employed  in  the  future. 
The  method  of   conflict  never  was  the  best 


Right  of  State  to  Adjudicate  Disputesioy 

possible  method  for  all  parties  interested.  It 
was  tolerated  because  of  conservatism,  and 
because  the  better  method  of  adjudication  had 
not  yet  made  sufficient  appeal  to  the  minds  of 
the  governing  majority  in  a  republican  form 
of  government. 

We  hear  something  about  the  "  inviolability 
of  vested  rights."  This  is  a  mere  legal  fetish 
for  the  protection  of  things  as  they  are.  No 
man  or  corporation  of  men  can  have  vested 
rights  which  the  state  may  not  abrogate  when 
such  is  required  by  the  good  of  the  state.  The 
self-interest  of  the  few  cannot  hold  against  the 
rights  of  the  many.  The  welfare  of  the  few 
cannot  be  held  against  the  demands  of  justice 
to  the  many.  A  former  generation  had  no 
right  to  say  irrevocably  what  this  generation 
should  do.  The  people  of  a  state  at  a  given 
time  cannot  make  an  unchangeable  statute  law 
or  an  unamendable  constitution.  The  people 
in  their  capacity  as  a  state  have  a  right  in 
each  period  of  time  to  make  such  statutes  as 
shall  seem  best  at  the  time  for  their  welfare. 

A  study  of  the  laws  of  primitive  society  re- 
veal that  for  the  primitive  man  laws  were  few 
and  simple.  As  man  advanced  in  social  prog- 
ress he  needed  and  made  more  laws.  As  a 
rule,  laws  were  not  made  until  they  were  de- 


io8  The  Kansas   Court 

manded  by  new  conditions.  There  has  always 
been  some  sort  of  struggle  between  capital  and 
labor.  This  struggle  has  often  been  marked 
by  needless  bloodshed,  because  at  the  time  the 
processes  of  law  were  not  adequate  to  admin- 
ister a  semblance  of  justice  without  conflict. 
That  struggle  has  assumed  different  forms  dur- 
ing different  periods  of  time,  and  it  has  been 
common  for  law  makers  to  endeavor,  in  the 
interest  of  the  state,  to  prevent  the  struggle 
from  assuming  its  most  dangerous  forms.  The 
intent  of  law  always  was  to  keep  social  ac- 
tivities and  industrial  processes  running 
smoothly  and  without  loss  of  life  or  property. 
Sometimes  when  the  law  has  not  met  the  sit- 
uation adequately  loss  of  property,  loss  of  life 
and  even  revolution  have  resulted. 

As  inventions  and  labor-saving  machinery 
and  education  increased  the  effectiveness  of 
laborers  their  lot  was  improved.  Also  the 
amount  of  capital  in  the  hands  of  the  employers 
was  increased.  As  laborers  saw  the  profits  on 
their  work  increase  they  demanded  more  and 
more  in  the  form  of  wages,  better  working 
conditions  and  shorter  hours.  Government 
made  laws  requiring  improvements  in  working 
conditions  and  providing  for  shorter  hours. 
Still  the  conflict   for  profits  and  wages  con- 


Right  of  State  to  Adjudicate  Disputesiog 

tinued,  with  resulting  strikes  on  the  one  hand 
and  lockouts  on  the  other.  Labor  organiza- 
tions sought  to  prevent  and  many  times  did 
prevent  any  man  from  working  unless  he 
joined  their  unions;  and  they  sought  to  regu- 
late, through  their  leaders,  all  the  conditions  of 
labor.  Labor  leaders  were  often  autocratic, 
unreasonable,  and  even  unethical.  They  re- 
duced output  and  threatened  the  common  wel- 
fare. Their  attitude  added  to  the  hostility 
between  capital  and  labor  and  fanned  the 
flames  of  ill  will  between  employers  and  em- 
ployees. The  employers  were  also  often  to 
blame  in  being  greedy,  domineering,  unsympa- 
thetic, personally  extravagant,  unsocial,  snob- 
bish, and  unjust.  This  hostile  relation  between 
capital  and  labor  was  not  good  for  the  welfare 
of  either  party  to  the  conflict,  and  was  perilous 
to  the  public;  consequently  we  see  govern- 
ments making  many  attempts  to  soften  the 
rigors  of  this  conflict  or  protect  the  public  from 
the  possible  cessation  of  services. 

As  organizations  of  capital  became  larger 
and  more  compact,  and  as  organizations  of 
laborers  became  larger  and  more  unified,  the 
struggle  assumed  still  more  dangerous  propor- 
tions, and  law  makers  endeavored  to  make 
some  provision  for  the  public  safety.    Corpora- 


no  The  Kansas   Court 

tion  commissions  and  boards  of  arbitration  be- 
came quite  common  and  have  done  much  good, 
but  have  been  inadequate  to  meet  the  need  for 
the  adjustment  of  differences  or  the  complete 
protection  of  the  public. 

In  some  industries  a  temporary  peace  has 
been  established  by  the  introduction  of  the 
methods  of  industrial  democracy,  but  such 
peace  is  only  temporary  and  partial  and  leads 
on  toward  a  new  form  of  conflict  between  new 
units  of  production.  And  we  can  see  no  way 
of  adjustment  of  the  new  conflicts  except 
through  a  tribunal  with  power  like  the  Indus- 
trial Court. 

The  only  solution  of  this  problem  which 
some  men  can  see  is  socialism.  But  the  people 
of  this  country  are  not  ready  for  socialism, 
only  a  small  portion  of  the  people  are  in  favor 
of  the  socialistic  program.  The  number  of  so- 
cialists apparently  is  not  growing.  The  great 
majority  of  the  American  people  want  a  rem- 
edy for  our  present  industrial  conflicts  now; 
they  are  not  now  in  favor  of  state  socialism; 
they  never  expect  to  favor  that  program;  and 
they  do  not  wish  to  wait  for  that  solution  of 
the  problem.  Furthermore,  they  do  not  wish 
to  do  anything  that  will  add  to  the  argument 
for  socialism,  or  leave  without  a  remedy  some 


Right  of  State  to  Adjudicate  Disputes    ii  i 

evil  which  will  constitute  an  argument  for  so- 
cialism. Apparently  the  outspoken  socialists 
wish  to  leave  present  evils  without  a  remedy  so 
that  these  evils  may  be  used  as  an  argument 
for  socialism;  but  the  great  majority  wish  to 
cure  our  ills  without  any  thought  of  waiting 
for  socialism,  and  to  cure  them  as  quickly  and 
as  effectively  as  possible  so  that  they  may  not 
be  used  as  an  argument  for  socialism. 

Whenever  an  ill  of  any  sort  appears  in  the 
existing  order  the  socialist  says,  "  Let  us  have 
state  socialism  and  that  will  cure  it."  He  will 
listen  to  no  other  prescription.  Apparently  he 
is  pleased  to  find  as  many  faults  as  possible 
in  the  present  order,  and  to  witness  new  evi- 
dences of  its  failure.  He  seems  opposed  to 
any  remedy  for  an  existing  evil  because  he 
wishes  the  evils  of  the  present  to  become  un- 
bearable as  a  means  of  revolution. 

For  this  reason  some  socialists  are  opposed 
to  the  Industrial  Court.  The  Court  promises 
to  do  what  they  have  said  could  not  be  done. 
The  Court  promises  to  give  us  a  remedy  where 
they  have  said  none  was  possible.  If  the  Court 
can  continue  to  succeed  as  its  friends  hope  it 
can,  then  socialism  will  have  lost  its  greatest 
argument.  The  opponents  of  the  Court  in 
southeast  Kansas  at  the  present  time  are  large- 


112  The  Kansas   Court 

ly  socialists  who  insist  that  nothing  short  of 
socialism  can  accomplish  the  purpose  for 
which  the  Court  was  established.  It  is  infi- 
nitely easier  to  give  the  Industrial  Court  a 
fair  trial  for  a  long  time  than  to  try  socialism. 
It  costs  almost  nothing  to  give  the  Court  the 
fairest  kind  of  trial  and  there  is  no  reason  why 
it  should  not  be  given  a  good  long  trial.  But 
it  would  prove  an  enormous  task  to  give  social- 
ism a  trial. 

However,  it  sheds  light  on  the  situation  to 
understand  why  socialists  oppose  the  Court, 
and  to  realize  that  their  opposition  is  not  based 
on  any  considerations  that  appeal  to  non-so- 
cialists, but  quite  the  contrary.  Socialists  op- 
pose the  Court  because  they  fear  that  it  will 
be  a  good  thing  in  the  existing  order  and  so 
help  to  perpetuate  the  existing  order.  The  rest 
of  us  favor  the  Court  for  the  very  same  rea- 
son. We  believe  that  it  will  help  the  existing 
order  so  much  that  socialism  will  lose  its  ap- 
peal. 

The  socialistic  state  would  solve  the  wage 
controversy  by  the  revolutionary  method  of 
government  ownership  of  the  instruments  of 
production  and  governmental  management  of 
the  processes  of  production  along  with  gov- 
ernmental authority  for  wages  and  distribu- 


Right  of  State  to  Adjudicate  Disputes   1 13 

tion ;  while  the  republican  state  with  the  Indus- 
trial Court  would  continue  the  present  method 
of  private  ownership,  and  private  management, 
and  private  adjustment  of  wages  so  long  as  the 
private  adjustments  work  satisfactorily,  and 
court  supervision  only  when  private  adjust- 
ment breaks  down  in  essential  industries.  So- 
cialism is  based  on  the  belief  that  the  great 
object  of  industry  is  the  production  and  dis- 
tribution of  economic  goods ;  while  republican- 
ism believes  that  character  building  in  the  lives 
of  men  and  women  should  be  the  chief 
aim  of  industrial  processes  and  that  char- 
acter building  can  be  best  promoted  under 
the  present  order  of  things  where  there 
is  more  freedom  for  initiative  than  can  be 
imagined  under  state  socialism.  Also  the 
protagonists  of  republican  forms  of  govern- 
ment believe  that  more  goods  will  be  produced 
under  private  enterprise  than  under  state  own- 
ership. 

We  want  a  political  rather  than  an  economic 
form  of  government;  by  which  we  mean  that 
we  want  a  government  by  all  the  people  rather 
than  by  an  industrial  class,  and  a  government 
that  safeguards  all  the  interests  of  the  people 
rather  than  one  that  is  chiefly  concerned  with 
production  and  distribution  of  goods.    The  re- 


114  ^^^  Kansas   Court 

publican  state  gives  the  individual  as  much 
freedom  as  possible;  the  socialistic  state  gives 
the  individual  as  little  freedom  as  possible. 
The  republican  state  leaves  all  to  private 
endeavor  so  long  as  private  endeavor  accom- 
plishes its  purpose  for  the  good  of  all  con- 
cerned ;  the  socialistic  state  leaves  no  room  for 
private  endeavor.  The  republican  state  only 
interferes  with  private  endeavor  when  such 
interference  becomes  necessary;  the  socialistic 
state  interferes  with  everything  and  abolishes 
all  private  endeavor  and  the  incentives  to  en- 
deavor. 

The  republican  state  would  leave  all  indus- 
trial affairs  as  they  now  are  and  only 
supervise  their  administration  where  such  su- 
pervision is  necessary  in  the  interest  of  justice; 
while  the  socialist  state  would  leave  nothing 
as  it  now  is  but  would  undertake  to  make 
everything  over,  a  new  pattern. 

So  long  as  private  enterprise  functions  justly 
the  republican  state  with  its  Industrial  Court 
will  not  disturb  its  methods  in  any  way;  but 
the  socialistic  state  will  allow  no  private  en^ 
terprise  at  all.  The  Industrial  Court  will 
disturb  no  good  thing  in  the  present  order,  but 
the  socialistic  state  will  disturb  or  destroy  every 
good  thing  in  the  present  order  and  attempt  to 


Right  of  State  to  Adjudicate  Disputes    115 

build  a  substitute  for  it.  Most  men  know 
fairly  well  what  they  can  do,  what  they  can 
earn,  and  toward  what  they  may  aspire  for 
themselves  and  their  children  under  the  pres- 
ent order  with  an  industrial  court,  in  a  repub- 
lic; but  with  the  revolution  to  a  socialistic 
state  no  man  can  have  any  idea  what  he  can 
do,  what  he  can  earn  or  what  he  may  hope 
for  himself  or  his  children.  At  the  present 
time  any  man  may  save  and  teach  his  children 
to  save  and  invest  and  become  a  property 
owner.  Under  socialism  no  one  can  become 
the  owner  of  productive  capital. 

We  know  the  good  and  evil  of  the  present 
system  and  how  to  strive  to  help  in  the  great 
work  of  overcoming  evil  with  good;  but  if  we 
change  to  a  socialistic  system  we  know  not 
what  evils  may  beset  us  or  whether  we  can 
do  anything  to  overcome  them.  If  we  ever 
overthrow  the  present  order,  to  set  up  a  so- 
cialistic state,  we  do  not  know  whether  we  can 
undo  the  change  and  return  to  the  present 
system  again  or  not.  We  do  know  that  we 
can  try  the  Industrial  Court  and  if  it  does  not 
continue  to  work  well  we  can  repeal  the  law 
and  be  just  where  we  were  with  no  harm  at  all 
from  the  experiment. 

An  occasional  anti-socialist  says  that  he  is 


Ii6  The   Kansas   Court 

opposed  to  the  Industrial  Court  because  it  is 
socialistic  in  its  methods;  while  we  hear  the 
socialist  say  that  he  is  opposed  to  it  because 
it  will  only  delay  the  coming  of  socialism. 
The  writer  believes  that  both  are  partly  correct 
as  to  the  nature  of  the  Court,  but  that  neither 
are  right  in  being  opposed  to  the  Court.  We 
believe  that  the  socialist  is  right  in  thinking 
that  the  Court  will  delay  the  coming  of  the 
socialist  program.  In  fact  we  think  that  the 
Court  will  develop  into  an  instrument  of  such 
usefulness  that  socialism  will  lose  so  much  of 
its  appeal  as  to  be  delayed  indefinitely;  but 
that  is  no  reason  for  opposing  the  Court,  but 
instead  is  a  great  reason  for  being  in  favor  of 
it.  The  Court  promises  to  remedy  some  of  the 
evils  while  preserving  all  the  good  things  in  the 
present  system,  and  leaving  us  living  in  an 
order  of  things  that  we  understand  instead  of 
hurling  us,  as  socialism  would,  into  a  new  order 
the  difficulties  of  which  we  would  not  under- 
stand. 

Neither  is  the  anti-socialist  justified  in  op- 
posing the  Court  on  the  ground  that  it  is  so- 
cialistic. The  postal  system  and  the  free  school 
system  are  both  socialistic,  but  both,  because 
of  their  universal  good  services  to  the  masses, 
help  to  content  the  very  class  of  people  that 


Right  of  State  to  Adjudicate  Disputes    1 17 

advocate  socialism,  and  no  one  proposes  to 
abolish  these  services  because  they  bear  some 
resemblances  to  things  that  are  in  the  socialist 
program.  While  the  Industrial  Court  may 
bear  some  resemblance  to  socialism,  neverthe- 
less the  more  successful  the  Court  becomes  in 
its  work  the  greater  argument  it  will  afford 
against  the  socialistic  program  in  its  entirety. 
If  the  Court  can  reduce  the  ills  of  the  present 
system  it  will  thus  strengthen  the  conservat- 
ism which  holds  on  to  the  present  system. 

The  socialist  who  says  that  the  Industrial 
Court  will  not  work  well,  that  it  cannot  do  the 
good  for  which  it  was  intended,  is  inconsistent 
because,  if  the  Industrial  Court  cannot  do  the 
work  for  which  it  was  designed  haw  can  the 
whole  socialist  program  be  made  to  work ;  since 
the  socialist  program  would  put  everything 
under  state  control.  We  are  confident  that 
the  Industrial  Court  will  continue  to  do  much 
good  because  it  has  already  done  much  good 
in  the  adjustment  of  industrial  disputes,  and 
because  it  is  based  on  sound  political  reasoning 
and  supported  by  the  sentiment  of  a  large  ma- 
jority of  our  people. 

Our  people  in  their  thinking,  and  our  indus- 
trial system  in  its  complexity,  are  ready  for  the 
Industrial  Court.     Our  people  in  their  senti- 


ii8  The  Kansas  Court 

merit  are  not  at  all  ready  for  socialism  and 
have  no  idea  of  giving  it  a  trial.  If  we  were 
to  try  it  at  this  time  or  at  any  early  date,  many 
of  us  think  that  it  would  not  work  because 
human  nature  as  it  now  is  desires  competition 
and  private  enterprise  and  is  not  ready  for  im- 
selfish  communistic  endeavor  on  the  socialistic 
basis. 

The  wise  and  unprejudiced  socialist  ought 
to  welcome  the  Industrial  Court  as  the  best 
instrumentality  along  the  line  of  his  ideals 
which  he  can  get  at  the  present  time.  And  the 
anti-socialist  ought  to  favor  the  Court  as  a  tri- 
bunal that  will  remove  much  of  the  effective 
argument  for  socialism  by  curing  the  evils  to 
which  the  socialist  calls  attention  in  his  dis- 
paragement of  the  present  order. 

Certain  capitalists  oppose  the  Court,  appar- 
ently because  they  think  that  without  the  Court 
they  could  drive  harder  bargains  with  their 
employees;  but  they  should  remember  that  in 
doing  so  they  endanger  their  whole  business, 
which  the  methods  of  the  Court  would  make 
more  secure  and  in  the  long  run  more  profit- 
able, even  though  it  did  somewhat  limit  the 
inordinate  profits  of  the  present.  It  is  better 
to  be  safe  than  sorry. 

Some  laboring  men  oppose  the  Court,  as  they 


Right  of  State  to  Adjudicate  Disputes    119 

say,  because  they  think  that  they  can  get  better 
wages  by  striking  than  the  Court  would 
award.  If  the  Court  awards  just  wages  they 
should  not  want  more  and  it  is  doubtful  if  in 
the  long  run  they  can  get  more  than  the  Court 
would  award.  Indeed  it  is  doubtful  if  they 
can  get  as  much  by  striking  as  the  Court  would 
award.  Even  the  method  of  striking  can  never 
bring  to  labor  greater  wages  than  the  business 
can  afford,  and  the  business  can  afford  better 
wages  if  not  interrupted  by  the  strike.  The 
method  of  striking  is  costly  to  labor  while  the 
awards  of  the  Court  cost  labor  nothing. 

Some  laborers  say  that  they  are  opposed  to 
the  Court  because  they  do  not  want  to  give  up 
the  right  to  strike,  and  when  told  that  the 
Court  will  make  the  strike  unnecessary  by  in- 
vestigating and  awarding  them  the  thing  that 
they  strike  for,  if  just,  they  reply  that  they 
fear  that  the  Court  will  be  influenced  more  by 
capital  than  by  labor  and  will  not  give  labor 
justice.  Our  answer  to  this  has  been,  first,  we 
believe  that  the  Court  will  continue  to  be  just 
to  labor  and  will  not  be  unduly  influenced  by 
capital,  because  no  court  can  afford  to  live 
under  the  just  accusation  of  being  an  instru- 
ment of  capital,  because  such  an  accusation, 
if  supported  by  the  semblance  of  facts  would 

10 


I20  The   Kansas   Court 

arouse  political  opposition  and  defeat  the  ad- 
ministration in  power  and  make  a  change. 
Second,  the  history  of  the  present  Court  thus 
far  has  not  been  such  as  to  warrant  any  other 
than  the  belief  that  it  is  fair  to  both  parties 
and  as  friendly  to  labor  as  is  consistent  with 
justice.  Third,  the  history  of  courts  of  equal 
dignity  in  this  country  reveals  them  as  fair 
and  just  and  not  unduly  influenced  in  the  past 
by  capital.  While  capital  has  economic  power, 
organized  labor  has  political  power,  so  that 
organized  labor  can  make  its  political  power 
felt  if  it  is  not  dealt  with  justly. 


CHAPTER  VII 

THE    PROPOSAL   TO    ESTABLISH 
A    FEDERAL    INDUSTRIAL    COURT 

PRESIDENT  HARDING  in  his  Annual 
Message,  December,  1921,  recommended 
a  Federal  Tribunal  to  adjust  labor  disputes  in 
the  following  words : 

The  right  of  labor  to  organize  is  just  as  fundamental 
and  as  necessary  as  the  right  of  capital  to  organize. 
.  .  .  .  In  the  case  of  corporations  which  enjoy 
the  privilege  of  limited  liability  of  stockholders,  particu- 
larly when  engaged  in  the  public  service,  it  is  recognized 
that  the  outside  public  has  a  large  concern  which  must 
be  protected ;  and  so  we  provide  regulations,  investiga- 
tions, and  in  some  cases  detailed  supervision.  Likewise 
in  the  case  of  labor  organizations,  we  might  apply 
equally  well-defined  principles  of  regulation  and  super- 
vision in  order  to  conserve  the  interest  of  the  public 
as  affected  by  their  operations. 

Just  as  it  is  not  desirable  that  a  corporation  shall 
be  allowed  to  impose  undue  exactions  upon  the  public ; 
so  it  is  not  desirable  that  a  labor  organization  shall 
be  permitted  to  exact  unfair  terms  of  employment  or 
subject  the  public  to  actual  distress  in  order  to  enforce 
its  terms.  Just  as  we  are  seeking  procedures  whereby 
to  settle  and  adjust  differences  between  nations  without 
war,  so  we  may  well  look  about  for  means  to  settle 
the  differences  between  organized  capital  and  organized 
labor  without  resorting  to  those  forms  of  warfare  which 
we  recognize  by  the  terms  strikes,  lockouts,  boycotts, 
and  the  like. 

121 


122  The  Kansas   Court 

As  we  have  great  bodies  of  law  carefully  regulating 
the  organization  and  operation  of  industrial  and  finan- 
cial corporations,  and  as  we  have  treaties  and  laws 
among  nations  which  look  to  the  settlement  of  differ- 
ences without  conflict ;  so  we  might  well  have  plans 
for  conference,  mediation,  arbitration  and  judicial  de- 
termination in  controversies  between  capital  and  labor. 

To  accomplish  this  would  involve  the  necessity  to 
develop  a  thorough-going  code  of  practice  in  dealing 
with  such  affairs.  It  might  be  well  to  set  forth  the 
superior  interests  of  the  community  as  a  whole  to  either 
the  labor  group  or  the  capitalist  group.  With  rights, 
privileges  and  modes  of  organization  thus  carefully 
defined,  it  ought  to  be  possible  to  set  up  judicial  or 
quasi-judicial  tribunals  for  the  consideration  and  de- 
termination of  all  disputes  which  menace  the  public 
welfare.  In  an  industrial  society  such  as  ours,  the 
strike,  the  lockout  and  the  boycott  are  as  much  out  of 
place  and  as  disastrous  in  their  results  as  war  or  armed 
revolution  in  the  domain  of  politics. 

We  note  that  President  Harding  used  the 
words  "  judicial  determination,"  and  "  judicial 
or  quasi-judicial  tribunals,"  and  "  determina- 
tion." Clearly  he  means  to  go  further  than 
investigation,  arbitration,  recommendation,  and 
publication;  for  we  have  all  of  these  now  and 
they  have  proved  useful  but  inadequate.  The 
more  adequate  thing  is  "  judicial  determina- 
tion "  such  as  we  have  in  the  Kansas  Court 
of  Industrial  Relations.  Even  though  all  the 
individual  states  in  the  Union  should  each  es- 
tablish Industrial  Courts,  that  would  not  be 


Proposal  to  Establish  a  Court      123 

entirely  sufficient  to  deal  with  controversies  af- 
fecting interstate  commerce.  Here  we  need  a 
Federal  Court  of  Industrial  Relations  such  as 
President  Harding  has  recommended. 

The  first  step  in  the  right  direction  will  be 
a  most  carefully  prepared  federal  law  creat- 
ing a  Federal  Court  of  Industrial  Relations. 
While  something  may  be  gained  by  a  study  of 
the  efforts  along  this  line  in  New  Zealand, 
Australia,  Canada,  Colorado  and  particularly 
in  Kansas,  some  original  provisions  will  be 
necessary  because  of  the  nature  and  scope  of 
our  federal  government.  Those  who  must  ad- 
minister the  new  law  will  need  the  sentimental 
support  of  the  people;  and  will  probably  have 
the  support  of  the  party  in  power  when  the  law 
is  drafted.  Quite  likely  the  party  that  is  not 
in  power  when  the  law  is  drafted  will  criticize 
it  adversely.  And  right  here  we  are  reminded 
of  one  of  the  regrettable  things  about  party 
politics,  which  is  the  tendency  of  the  party 
not  in  power,  not  only  to  criticize  what  is  done, 
but  also  to  try  to  prevent  the  success  of  the 
measures  of  the  party  in  power.  Also  some 
opposition  may  be  expected  from  those  em- 
ployers who  think  that  they  could  drive  hard 
bargains  with  labor  and  so  make  more  money 
without  the  intervention  of  such  a  Court.    And 


124  ^^^^   Kansas   Court 

some  opposition  may  be  expected  from  those 
peculiar  labor  leaders  who  have  themselves  per- 
sonally enjoyed  their  past  methods  of  making 
strife  between  labor  and  capital  so  that  they 
might  pose  as  the  champions  of  labor.  These 
personally  prosper  by  industrial  war  rather 
than  industrial  peace.  They  will  not  wish  to 
see  the  Court  do  better  for  labor  than  they 
can  do.  They  will  not  wish  to  see  industrial 
peace  put  their  militant  methods  out  of  busi- 
ness. On  the  other  hand  we  shall  find  intelli- 
gent and  altruistic  labor  leaders  welcome  the 
peace  which  the  Court  will  bring;  and  also 
fair-minded  employers  who  will  be  glad  to  see 
the  continuity  of  business  which  will  come  with 
adjudication  that  shall  replace  agitation  and 
uncertainty. 

Positions  on  the  Court  or  influence  with  the 
Court  will  be  fraught  with  great  temptations 
to  serve  selfish  interests,  and  for  that  reason 
such  positions  should  never  be  regarded  as 
spoils,  as  patronage  or  as  any  place  to  pay  party 
obligations.  The  public  sentiment  of  the  coun- 
try should  be  taught  to  condemn  any  party  that 
should  regard  the  Court  as  a  selfish  opportun- 
ity or  fail  to  hold  the  Court  far  above  sordid 
considerations. 

Along  with  all  the  other  qualities  needed  the 


Proposal  to  Establish  a  Court      125 

judges  of  this  Court  should  be  men  who  have 
in  their  lives  already  demonstrated  that  they 
have  absolute  courage  and  fidelity  —  that  they 
will  not  yield  to  any  selfish  consideration  — 
that  they  will  not  use  the  Court  as  a  means  to 
seek  any  other  position  —  that  they  will  live 
humbly,  and  possess  only  the  salary  of  the 
office,  and  die  poor.  To  serve  on  that  Court 
should  be  regarded  as  one  of  the  highest  honors 
that  can  come  to  any  man,  and  its  judges 
should  regard  that  honor  as  their  only  reward 
along  with  a  living  salary. 

Such  a  Court  could  do  a  great  deal  of  good 
and  little  or  no  harm. 

To  give  it  a  trial  would  cost  almost  nothing 
compared  with  the  potential  benefits.  It  is  an 
experiment  which  could  be  tried  and  abandoned 
without  loss.  Therefore  there  is  no  good  rea- 
son at  all  for  not  trying  the  experiment.  But 
it  should  not  be  regarded  merely  as  an  experi- 
ment. It  should  be  regarded  as  an  instrument 
to  be  improved  rather  than  abandoned  if  faults 
are  found. 

However,  the  most  effective  Court  of  the 
kind  could  not  cure  all  our  industrial  ills.  We 
need  industrial  democracy  with  a  new  birth  of 
brotherly  love  on  the  part  of  both  capital  and 
labor.     We  need  new  ideals  of  service  to  re- 


126  The  Kansas  Court 

place  selfishness.  Capital  must  put  off  ex- 
travagance and  vanity,  and  labor  must  put  off 
envy  and  discontent.  Capital  must  put  off  the 
assumption  of  superiority  and  recognize  the  la- 
borer as  his  brother.  Both  must  fear  God  and 
love  men. 

The  Court  can  adjudicate  differences,  but  it 
cannot  compel  men  to  be  satisfied  with  the  re- 
sults. Where  capitalists  are  greedy  for  inordi- 
nate profits,  and  where  laborers  want  wages 
higher  than  they  can  earn,  no  Court  can  render 
a  verdict  that  will  be  satisfactory.  Neverthe- 
less the  verdict  of  the  Court  will  be  better  than 
»  trial  by  battle. 

And  for  such  situations,  along  with  the 
work  of  the  Court,  we  need  to  have  some  of 
the  methods  of  industrial  democracy.  The  la- 
borers should  own  shares  in  the  business,  so  as 
to  be  interested  in  the  profits  and  have  a  voice 
in  the  management.  The  laborers  should  be 
part-owners,  and  the  owners  should  be  in  gen- 
uine sympathy  with  the  laborers.  One  who  is 
/both  a  property  owner  and  a  worker  is  a  bet- 
ter citizen  than  one  who  owns  property  and 
does  not  labor,  or  one  who  merely  labors  and 
owns  nothing.  The  laborer  should  own  enough 
stock  in  the  concern  he  serves  to  have  a  vital 
interest  in  the  dividends;  and  the  capitalist 


Proposal  to  Establish  a  Court      127 

should  have  enough  sympathy  for  the  laborer 
to  wish  to  pay  as  good  wages  as  the  welfare  of 
the  business  will  allow.  Where  such  mutual 
interests  exist  we  are  not  likely  to  find  the  evils 
of  strikes,  lockouts,  boycotts,  reduced  output, 
time  killing,  slack- work,  unsafe  conditions  or 
ill  will.  Public  sentiment  should  encourage  the 
establishment  of  such  conditions  by  giving 
preference  in  trade  to  concerns  that  are  doing 
business  in  that  way.  An  Industrial  Court 
would  be  in  a  position  to  encourage  such  refor- 
mations. Laboring  men  should  be  taught  to 
save  money  and  invest  in  the  stocks  of  the 
firms  they  serve  as  an  evidence  of  good  faith. 
Capitalists  should  be  expected  to  sell,  at  a  rea- 
sonable rate,  stocks  to  their  employees  as  an 
assurance  of  fairness  and  good  will. 

Even  industrial  democracy,  desirable  as  it  is, 
cannot  bring  about  perfect  peace  or  complete 
harmony  among  all  interests.  The  peace  it 
brings  will  be  local  and  temporary.  The  capi- 
talist and  the  laborers  producing  a  certain  line 
of  goods  may  get  together,  organize  a  democ- 
racy in  their  line  of  work,  place  shares  of  stock 
in  the  hands  of  the  laborers,  share  the  man- 
agement with  the  laborers  and  pay  as  high 
wages  as  the  business  will  bear,  increase  the 
wages  of  labor  and  add  it  to  the  selling  price 


128  The  Kansas   Court 

of  the  output  and  thus  add  to  the  cost  of  living 
for  other  groups.  All  who  thus  organize  may 
add  to  the  price  of  their  products  until  the 
unorganized  suffer  intolerably.  If  all  are  or- 
ganized then  we  shall  have  a  new  form  of  con- 
flict between  the  different  organizations  of  pro- 
ducers and  consumers.  We  shall  still  need  an 
Industrial  Court  as  much  as  we  do  at  the  pres- 
ent time,  to  adjudicate  the  new  type  of  con- 
flict. 

And  when  the  best  possible  Court  has  done 
all  that  a  Court  can  do,  it  is  not  in  human 
wisdom  to  administer  perfect  justice  or  make 
men  contented  with  their  own  just  shares  of 
the  goods  of  the  world.  Religion  must  do  its 
work  in  the  hearts  of  men ;  and  education  must 
promote  a  better  understanding  of  social  and 
industrial  problems.  Industry  as  a  personal 
virtue,  thrift  and  economy  must  be  honored, 
instead  of  the  show  of  wealth  and  extrava- 
gance. Waste  and  dissipation  of  every  kind 
must  be  condemned  by  enlightened  public  sen- 
timent. 

Just  here  the  thought  of  education  suggests 
one  of  the  best  ways  in  which  the  capitalist 
can  soften  the  bitterness  of  the  laborer  and  at 
the  same  time  be  perfectly  sure  that  he  is  also 
doing  the  best  possible  service  for  the  welfare 


Proposal  to  Establish  a  Court      129 

of  the  state.  The  state  should  greatly  improve 
the  educational  facilities  for  all  the  children 
of  the  state,  for  the  benefit  of  the  state  as  a 
whole  as  well  as  to  cause  the  laborer  to  feel 
that  his  children  will  have  a  better  chance  in 
life.  This  educational  improvement  cannot  be 
made  without  more  money  and  to  secure  that 
additional  money  for  public  schools  the  capital- 
ist should  consent  to  an  inheritance  tax  for 
public  school  revenues.  The  capitalist  objects 
to  a  tax  during  his  lifetime  which  diminishes 
the  volume  of  his  business,  but  he  should  not 
object  tO'  an  inheritance  tax  on  the  same  ground 
or  on  any  other  ground. 

The  laborer  is  made  envious  and  bitter  by 
seeing  the  children  of  the  capitalist  extrava- 
gantly indulged  and  spoiled  and  enriched  with 
money  that  labor  has  produced,  while  the  la- 
borers' children  are  pinched  with  poverty  and 
made  to  start  in  the  world  without  a  fair 
chance.  Now  if  the  laborer  could  see  his  chil- 
dren get  a  good  education  at  the  public  schools 
paid  for  by  the  accumulated  wealth  given  to 
the  state  in  the  form  of  an  inheritance  tax, 
much  of  the  present  ill  will  would  disappear. 
The  children  of  the  capitalist  ought  not  to  in- 
herit vast  fortunes  that  they  have  not  earned, 
and  the  children  of  the  laborer  ought  not  to 


130  The  Kansas   Court 

be  deprived  of  the  best  possible  educational 
advantages,  as  they  now  are,  because  of  inade- 
quate public  school  revenues.  An  inheritance 
tax  for  common  schools  would  not  level  down 
but  would  level  up,  and  would  go  far  toward 
removing  the  bitterness  that  goes  with  the  pres- 
ent injustice.  If  this  were  done  wisely  on  a 
big,  generous  scale  it  would  go  far  toward 
bringing  in  the  feeling  of  brotherhood  so 
greatly  to  be  desired. 

When  the  machinery  of  production  shall  be 
so  adjusted  as  to  work  well  there  will  be  no 
strikes  or  lockouts.  Instead  of  the  constant 
war  which  radical  labor  leaders  have  said  is 
inevitable,  we  shall  have  organization,  coopera- 
tion and  peace.  Such  potential  conflicts  as  are 
inevitable  will  be  adjusted  by  courts.  Labor- 
ers will  be  organized  for  the  ethical  purposes 
of  self -improvement,  collective  bargaining,  mu- 
tual understandings,  social  interests,  and  eco- 
nomic adjustments.  Laborers  will  own  at 
least  small  shares  in  the  institutions  that  they 
serve,  and  will  know  the  conditions  of  the 
business.  The  radical  will  not  be  chosen  as  a 
labor  leader,  because  his  destructive  thinking 
will  not  be  wanted.  Labor  leaders  will  be  able 
to  sit  down  with  capitalists  and  adjust  nearly 
all  difficulties  on  the  ground  of  common  inter- 


Proposal  to  Establish  a  Court     131 

est.  Most  potential  difficulties  will  be  settled  by 
voluntary  arbitration  because  the  parties  will  be 
conscious  that  unless  they  do  so  adjust  their 
own  difficulties  the  industrial  courts  will  make 
the  adjustments  for  them.  The  capitalistic 
leader  will  be  interested  in  the  welfare  of  the 
workers  who  are  his  fellow  shareholders  in  the 
firm.  Public  sentiment  will  be  severe  with  the 
capitalist  who  exploits  labor.  The  extrava- 
gance and  wastefulness  of  the  rich  will  tend  to 
disappear  because  condemned  by  public  senti- 
ment. The  inherited  wealth  of  the  state  will  pay 
generous  tribute  to  the  state  for  the  advance- 
ment of  wise  welfare  work  among  all  classes. 
The  hereditary  rich  will  give  so  much  for  the 
education  of  the  children  of  all  classes  that  the 
laborer  will  not  feel  so  bitter  as  in  the  past ;  for 
in  the  new  order  his  children  will  get  a  good 
education  and  have  a  good  chance.  Everyone 
will  realize  the  significance  of  industry  and 
economy  and  integrity.  All  will  see  the  impor- 
tance of  generous  production  and  wise  econ- 
omy. This  is  not  an  impossible  picture,  for 
some  of  the  public  schools  are  now  teaching 
these  ideals  to  the  masses. 

No  special  class  or  special  interest  should  be 
allowed  to  dominate  the  state.  Class-minded- 
ness  is  not  good  for  the  welfare  of  the  state. 


132  The  Kansas   Court 

The  state  must  insure  for  labor  an  equitable 
share  of  its  products  without  the  necessity  of 
labor  having  to  fight  for  it  in  a  manner  so 
wasteful  as  the  strike.  The  state  must  also 
protect  property  without  property  owners  feel- 
ing the  necessity  for  employing  private  gun- 
men. The  state  must  also  protect  the  public 
against  the  aggressions  of  any  organized  class. 
And  since  the  state  is  but  the  political  expres- 
sion of  the  minds  of  the  whole  people,  the  great 
task  of  intelligent  and  patriotic  men  and 
women  is  to  educate  public  sentiment  and  lead 
the  people  wisely. 

Good-will  and  political  wisdom  must  be 
made  more  abundant.  Public  spirit  and  pa- 
triotic practical  politics  must  go  together  in 
our  civic  life  more  fully  than  ever  before.  We 
need  the  preaching  of  a  new  crusade  to  wrest 
the  modern  holy  land  of  our  government  from 
the  hands  of  any  who  are  selfish  in  their  meth- 
ods or  merely  mediocre  in  their  ability.  As 
the  present  evolution  of  complex  industrial 
conditions  demand  greater  services  from  the 
state,  it  becomes  necessary  that  the  greatest 
men  within  the  state  shall  give  their  unselfish 
services  to  the  state.  And  since  our  state  is  a 
republic  in  which  the  masses  help  to  choose 
those  who  administer  the  duties  of  the  state, 


Proposal  to  Establish  a  Court      133 

it  is  not  enough  to  have  among  our  citizens  po- 
tential benign  and  intelligent  leadership;  for  it 
has  been  often  sadly  demonstrated  that  a  poor- 
ly educated  electorate  will  not  always  choose 
the  wisest  leadership  but  instead  are  often 
deceived  by  the  demagogue.  Therefore  the 
masses  must  have  a  vastly  better  civic  educa- 
tion than  they  have  had  in  the  past,  and  edu- 
cation and  religion  must  work  together  to  cre- 
ate a  new  social  conscience. 


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